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& 


SELECTED   CASES 


ON  THE 


LAW  OF  PROPERTY  IN  LAND 


EDITED    BY 

WILLIAM    A.    FINCH 

PROFESSOR    OF    LAW    IN    CORNELL    t'NIVERSITY 
COLLEGE    OF    LAW 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 

1898 


COPYRIGHT,    I898 

By  William  A.  Finch 


f4?/6* 


Weed-Parsons  Printing  Co., 

elbctr0ttpeb8,  printers  and  binders, 

Albany,  N.  Y. 


PREFACE. 


This  book  contains  a  classified  selection  of  cases  on  the 
topics  usually  taught  in  our  law  schools  in  the  course  on 
"  Real  Property." 

Systematic  and  complete  annotation  was  of  course 
impossible  within  such  narrow  limits.  A  few  notes 
have,  however,  been  added,  mainly  at  points  where 
additional  references  or  special  suggestions  seemed  par- 
ticularly necessary. 

In  the  title  I  have  followed  Leake,  whose  "  Digest  of 
the  Law  of  Property  in  Land  "  has  been  especially  useful 
to  me  in  the  matter  of  analysis  and  classification. 

W.  A.  F. 

Cornell  University, 
September,  1898. 


TABLE  OF  CONTENTS. 


PART    I. 
Of  the  Nature  and  Kinds  of  Property  in  Land. 


CHAPTER  I. 

PAGE 

What  is  Meant  by  Property  in  Land i 

CHAPTER  II. 
Real  and  Personal  Property. 

I.  What  estates  and  interests  in  land  are  real  ;  what  are  personal.  8 

1.  Leasehold  interests  in  land 8 

2.  Estates  pur  autre  vie 13 

3.  Shares  of  stock  in  land-holding  corporations 14 

4.  Land  treated  as  money  by  "  equitable  conversion  " 20 

II.  Leading  differences   in  the  law  as  between  real  and  personal 

property 20 

1.  In  the  "  law  of  succession  "  to  estates  of  deceased  persons 20 

2.  In  the  law  of  dower  and  curtesy 23 

3.  In   husband's   common-law   right    to   wife's   real   and    personal 

property 26 

4.  In  modes  of  transfer 31 

5.  In  form  of  contract  for  a  sale. 38 

6.  In  the  order  in  which  property  maybe  reached  for  the  satisfaction 

of  debts  of  its  owner 42 

7.  What  law  governs  in  case  of  conflict  of  laws 44 

8.  In  the  method  and  means  of  vindicating  property  rights 51 

a.  Kinds  of  action 51 

(1)  For  the  recovery  of  property 51 

(2)  For  the  recovery  of  damages  for  wrongs  to  property; 

trespass,  trover,  waste 62 

(3)  For  the  prevention  of  threatened  wrongs  to  property.  62 

b.  Where  the  action  must  be  brought 65 

III.  Interests  in  things  the  subject  of  property  may  change  from  real 

to  PERSONAL  AND  vice-versa 70 

1.  In  view  of  a  court  of  law 70 

2.  In  view  of  a  court  of  equity 70 

[v] 


Vi  TABLE   OF   CONTENTS. 

CHAPTER  III. 

PAGE. 

Corporeal  and  incorporeal  property  in  land 76 

CHAPTER  IV. 
Absolute  and  special  or  limited  property  in  land.  ...   80 

CHAPTER  V. 
Allodial  and  feudal  property  in  land 81 

CHAPTER  VI. 
Legal  and  equitable  property  in  land 93 


PART  II. 
Of  Land  as  the  Subject  of  Property. 


CHAPTER  I. 

Subdivision  of  Land  for  Purposes  of  Ownership. 
I.  The  ordinary  and  usual  mode  of  subdivision.     Presumption  as  to 

OWNERSHIP    OF   THE    UNDERLYING   STRATA   AND    OF    THE    SPACE    ABOVE 
THE  SURFACE.       EFFECT  OF  THIS  RULE  ON  THINGS  IN  SUCH  SPACE. .        ..       97 

II.  There  may  be  longitudinal  as  well  as  vertical   subdivision    for 

OWNERSHIP IOO 

CHAPTER  II. 
Constituents  and    Incidents  of  Land. 

I.  The  soil  and  accretions  thereto 108 

1.  Accretions   108 

2.  Soil  and  rock  detached 113 

II.   Water  as  "  land  " 116 

1.  Nature  of  property  in  surface  or  standing  waters 116 

2.  Nature  of  property  in  running  waters 116 

3.  Artificial  watercourses 126 

4.  Property  in  underground  waters ....  130 

III.    ICE  AS  INCIDENT  TO  LAND 136 

1.  Ice  formed  over  lands  of  private  owners 136 

2.  Ice  on  public  waters 146 

3.  Sale  of  ice 149 

IV.  Vegetabli  products  of  the  soil •   151 

1.  Fructus  naturales ...  151 

a.     Classification  and  legal  character  and  ownership 151 

(1)  Trees  and   their  fruit .  .  151 

(2)  Hushes  and  small  fruits 171 

(3)  Grasses 173 


TABLE   OF   CONTENTS.  vii 

PAGE. 

b.  Effect  on  fructus  naturales  of  sale,  devise,  or  mortgage   of 

the  land . .      1 74 

(1)  In  general 174 

(2)  How  exceptions  or  reservations  must  be  made.     Their 

effect 176 

c.  Separate  sale  or  mortgage  of  fructus  naturales, —  how  made  179 

(1)  The  general  rule 179 

(2)  The  Kentucky  Doctrine 180 

(3)  The  Massachusetts  Doctrine 182 

d.  Separate  levy  of  execution  on  fructus  naturales 187 

2.  Fructus  industrials 187 

a.  What  they  are 187 

b.  Effect  on  fructus  industrials  of  sale  of  land -.  . . .    188 

(1)  In  general 188 

(2)  Exceptions  or  reservations, —  how  to  be  made 196 

(3)  Effect  of  sale  of  land  on  foreclosure.  ...    197 

c.  Devise  of  the  land, —  effect  on  crops  in  ground  at   testator's 

death    207 

d.  Death  of  owner  intestate, —  effect  on  crop  in  ground 209 

e.  Separate  sale  of  crops  in  ground 211 

f.  Levy  of  execution  on  growing  crops 214 

V.  Fixtures 218 

1.  Necessity  for  "  annexation,"  either  mediately  or  immediately,  to 

the  soil 2r8 

a.     Actual  and  constructive  annexation 2t8 

/'.     What  mode  or  degree  of  annexation    is  conclusive   against 

removability  ;  what  is  not 234 

2.  Severance  of  a  chattel  which  has  once  been  annexed 254 

a.  Severance  by  owner  of  land 254 

(1)  Actual 254 

(a)  With  intent  that  severance  shall  be  permanent  254 

(b)  Without   intent   that   severance   shall  be  per- 

manent    255 

(2)  Constructive  severance  by  sale,  exception,  mortgage, 

or  agreement 257 

(a)  Sale  or  exception  :  by  parol  or  deed 257 

(b)  Mortgage  :  real  or  chattel 261 

(3)  When  landowner  may  not  sever  fixtures 263 

b.  Severance  by  stranger  or  by  the  forces  of  nature 267 

c.  Sale  of  fixtures  on  execution 270 

3.  The  intention  of  the  party  annexing  as  bearing  on   the  question 

of  removability 271 

a.  Relative  importance  of  this  test   271 

b.  The  actual  intent  of  the  annexer 280 

c.  The     "reasonably    presumable    intent"     in    annexing,    as 

inferred  from  the  surrounding  circumstances 280 

(1)  What  is  meant  by  'reasonably  presumable  intent"..    2S0 

(2)  How  the  "reasonably  presumable  intent"  in  annex- 

ing is  ascertained 283 

(a)     From  the  nature  of  the  chattel  annexed 283 


Vlll  TABLE    OF   CONTENTS. 

PAGE. 

(3)     From  the  mode  and  degree  of  annexation  ....   283 

(c)  From    the     apparent     appropriation    of     the 

chattel  to  the  use  or  purpose  of  that  part  of 
the  realty  with  which  it  is  connected 283 

(d)  From  the  relation  of  the  annexor  to  the  chattel 

and  to  the  land 283 

4.  The  apparent  appropriation  of  the  chattel  to  the  use  or  purpose  of 

that  part  of  the  realty  with  which  it  is  connected.      Fixtures  by 
destination 283 

5.  The  relation  of  the  annexor  to  the  chattel  and  the  land  as  bearing 

on  the  "  reasonably  presumable  intent"  in  annexing 283 

A.  The  chattel  owner  has  no  interest  in  the  land 283 

a.  The  chattel  owner  is   annexor 283 

(1)  He  annexes   without  license   of,  or   agreement  with, 

landowner 283 

(2)  Chattel  owner  has  license  of,  or  agreement  with,  land- 

owner    286 

b.  The  landowner  annexes  the  chattel  of  another 290 

B.  The  chattel  owner,  annexing,  has  an  interest  in  the  land 305 

a.  The  annexor  is  the  general  owner  of  the  land  or  is  on  his 

way  to  become  such 305 

(1)  The  question  arises  between  real  and  personal  repre- 

sentatives of  the  annexor 305 

(a)     Between   executor  or    administrator    and    the 
persons    succeeding    to    a    decedent's    real 

estate. 305 

(/')     Between  execution  creditor  of  annexor  and  his 

vendee  or  mortgagee 307 

(2)  Between    vendor    (by   deed)  and  vendee  ;  mortgagor 

and  mortgagee.      Between  tenants  in  common. .   307 

(3)  Between     land-contract-vendee     annexing,    and    his 

vendor 309 

b.  Annexor  is  tenant  for  life 310 

c.  Annexor  is  tenant  for  years 312 

(1)  Trade  fixtures 312 

(2)  Agricultural  fixtures 322 

(3)  Domestic  fixtures  322 

(4)  Time  of  removal  of  fixtures  by  tenant 323 

VI.  Manure  as  incident  to  land 338 

1.  Agricultural  lands 338 

a.     As  between  vendor  and  vendee  and  heir  and  executor 338 

mi    The  general  rule 33s 

(2)  The  New  Jersey  Doctrine 34° 

/'.      As  between  landlord  and  tenant 344 

r.     Separate  sale  of  manure 346 

2.  Lands  not  agricultural,  <>r  riot  to  be  used  for  agricultural  purposes.  347 
VII.    Sl.A  WEED,   WRECK,   STRANDED  PROPERTY.      MlSLAID  GOODS 351 

VIII.    PROPERTV   IN'  PISH   AND  GAME  rationt  soli 360 

IX.  Minerals 372 


TABLE   OF   CONTENTS.  ix 

PART    III. 
Of  the  Use  and  Profits  of  Land. 


CHAPTER  I. 

Use  by  the  General  Owner  in  Possession, 

PAGE. 

I.  General  restrictions  on  such  use 3S2 

1.   The  maxim  "  sic  utere  tuo  ut  alienum  non  Icedas." 382 

II.  Special  restrictions  on  such  use  of  land 3S3 

1.  Conditions  and  limitations  forbidding  certain   uses  or  limiting  to 

particular  uses   3S3 

2.  Restrictive  covenants 3S7 

3.  Restriction   as   to  equitable   waste   when   there    is    an    executory 

devise  over 391 

4.  Other  cases   in    which   general  owner   may  be  responsible  as  for 

waste .'  396 

1 

CHAPTER  II. 

Use  ey  Tenants  for  Life,  for  Years,  or  at  Will,  in  Possession. 

I.  Ordinary  use 401 

1.  The  temporary  uses  and  profits  —  cropsand  rents  —  emblements  in 

general " 401 

2.  Estovers    417 

3.  Fixtures  and  improvements 419 

II.  General  restrictions  upon  tenant's  use 422 

1.   The   maxim    "  sic  utere  tuo  ut  alienum  non  Icedas  " 422 

III.  Special    restrictions    protecting    the    inheritance    for    general 

owner.     Waste 422 

1.  Nature  and  kinds  of  waste 422 

a.  Voluntary  waste 422 

b.  Permissive  waste    422 

c.  Equitable  waste 442 

2.  In  what  waste  consists 445 

a.  In  respect  of  houses  and  other  structures 445 

b.  As  to  wood-lands 445 

c.  Changes  in  manner  of  using  land.     Good  husbandry 450 

d.  Opening  and  working  mines 453 

3.  Against  whom  waste  lies  and  in  whose  favor 460 

4.  The  various  remedies  for  waste.    466 

a.  At  common  law    466 

(1)  Writ  of  prohibition  and  attachment 466 

(2)  Writ  of  waste 466 

(3)  Trespass  on  the  case  in  the  nature  of  waste 466 

b.  Under  modern  statutes 466 

c.  In   equity  —  injunction 466 

5.  Ownership  of  timber,  minerals,  etc.,  removed  by  tenant   466 


X  TABLE    OF   CONTENTS. 

CHAPTER  III. 

Use  of  Another's  Land. 

PAGE. 

I.   Under  easements  472 

1 1.  Profits  a  prendre 475 

III.   Under  licenses 480 


PART  IV. 
Of  Estates  and  Other  Interests  in  Land. 


CHAPTER  I. 

Estates  as  to  Quantity  and  Quality  :  Freeholds. 

I    Freeholds  of  inheritance  or  fees 483 

1.  Limitation  of  a  fee  in  its  creation  or  transfer.     Words  of  limitation  483 

a.  By  deed  inter  vivos  —  at  common  law 483 

(1)  The  general  rule  as  to  necessity  for  technical  words  of 

limitation  in  a  transfer  or  reservation 483 

(2)  Incorporation  of  words  of  limitation   by   reference  to 

another  instrument 499 

(3)  In  the  transfer  of  a  fee  to  a  trustee   502 

(4)  In  the  transfer  of  an  equitable  interest 505 

(5)  In  the  transfer  of  a  fee  to  a  corporation 509 

(6)  In  partition  deeds  between  joint  tenants  and  tenants 

in  common 511 

(7)  Effect  if  the  words  of  inheritance  be  in  the  covenants 

only 513 

b.  Inter  vivos  —  under  modern  statutes.    513 

c.  By  devise  under  the  ancient  "  statute  of  wills  " 513 

d.  By  devise  under  modern  statutes 519 

e.  The  rule  in  Shelley's  Case 519 

2.  The  different  kinds  of  fees ". . . .  .  520 

a.     The  fee-farm- or  socage-tenure  fee    520 

l>.      The  modern  fee  simple  absolute 521 

c.  Qualified  or  defeasible  fees 521 

(1)  Determinable   fees;    fees    upon   (special  or  collateral) 

limitation 521 

(2)  Fees  upon  condition 527 

(a)     In  general 527 

(/>)     Void  conditions  and   conditions  impossible   of 

performance 542 

(3)  Fees  upon  conditional-limitation 551 

d.  The  fee-conditional  of  the  common  law 551 

e.  The  fee-tail 555 


TABLE    OF   CONTENTS.  XI 

PAGE. 

3.     The  necessary  incidents  of  a  fee 560 

a.  Alienability 560 

(1)  In  general  :  voluntary  and  involuntary.     Inter  vivos 

and  by  devise 560 

(2)  Validity  and  effect  of  clauses  intended  to  restrain  the 

alienation  of  a  fee 561 

(a)  Conditions,  limitations  and  conditional  limita- 

tions.    Declarations    that    the    fee    shall    be 
inalienable.     General  restraints 561 

(b)  Qualified  restraints 567 

(c)  Exception  in  case  of  separate  estates  of  married 

women 571 

b.  Descent,  dower,  curtesy 575 

II.  Freeholds  not  of  inheritance,  —  life  estates 575 

1.  In  general, —  nature  and  classification 575 

a.  Absolute  and  defeasible   575 

b.  For  one's  own  life  and  pur  autre  vie 578 

(1)  Pur  autre  vie:  Direct  and  indirect  creation 578 

(2)  Pur  autre  vie:  Effect  of  death  of  first-taker  in   pos- 

session...   579 

(a)  General  and  special  occupants 579 

(b)  The  modern  statutes 580 

c.  Conventional  and  legal  life  estates 581 

d.  Incidents  of  life  estates 581 

(1)  Alienability,  voluntary  and  involuntary 581 

(a)  Restraints  upon  alienation 581 

(b)  Forfeiture  for  alienation 605 

(2)  Responsibility  of   life-tenant   for   incumbrances    and 

taxes 607 

(3)  Estovers.     Emblements.     Improvements  and  fixtures. 

Waste 611 

e.  Termination  of  life-estates 611 

(1)  The  natural  termination    611 

(2)  Forfeiture 612 

(3)  Merger 615 

2.  Conventional  life-estates   . .    619 

a.  Created  by  act  of  parties 619 

(i)Bydeed 619 

(2)  By  devise 619 

(3)  Not  by  parol,  or  by  writing  less  than  deed 619 

b.  The  words  of  limitation j 620 

c.  Created  out  of  what 620 

d.  Successive  life-estates 620 

3.  Legal  life-estates 621 

a.  Estate  in  tail  after  possibility  of  issue  extinct 621 

b.  Estate  by  the  marital  right 621 

c.  Estate  by  the  curtesy 622 

(r)  Nature  of  curtesy,  initiate  and  consummate 622 

(2)  The  essentials  for  curtesy 627 

(a)     Lawful  marriage 627 


Xll  TABLE   OF   CONTENTS. 

PAGE. 

(b)  Birth  of  issue 627 

(c)  Seisin  of  wife 628 

(d)  Death  of  wife 637 

(e)  Need  not  all  coincide  in  time 637 

(3)  To  what  estates  curtesy  is  an  incident    639 

(a)  In  general ...    639 

(b)  Fees  subject  to  executory  limitations 641 

(4)  How  curtesy  may  be  defeated   64 5 

(a)  Alienage  of  husband   645 

{b)  Forfeiture  for  alienation  of  fee 6j.6 

(c)  Annulment  of  marriage.     Absolute  divorce. . .   646 

(d)  Wife's  conveyance 647 

(e)  Effect  of  disclaimer   648 

d.  Dower 648 

(1)  Nature  of  dower 648 

(a)  Dower  inchoate 648 

(b)  Dower  consummate, —  before  "  assignment  ". .  650 

(c)  Dower  consummate, — after    "assignment"..  653 

(2)  Essentials  for  dower 656 

(a)  Lawful  marriage 656 

(b)  Seisin  of  husband    during  coverture 658 

(c)  Death  of  husband 668 

(3)  In  what  estates  and  lands  a  widow  may  have  dower.  .  669 

(a)  In  general,  in  estates  of  inheritance 669 

(b)  As  to  estates  of  inheritance  in  expectancy....   669 
(<-)      In  the  case  of  determinable  estates 669 

(d)  Dower  in  equitable  estates  of  inheritance 675 

(e)  Dower  in  wild  lands   680 

(/)    Estates  in  joint  tenancy  and  in  partnership...   685 

(4)  Barring  dower 687 

(a)  Conveyance  of,  or  charge  on,  land,  by  intended 

husband  before  marriage   687 

(b)  Ante-nuptial    settlements    or    agreements    in- 

tended to  bar  dower 689 

(c)  Alienage  of  wife 692 

(5)  Defeating  dower 695 

(a)     Elopement  and  adultery.     Divorce 695 

{b)     Loss  of  husband's  estate 698 

(c)  Husband's  conveyance  during  coverture 701 

(d)  Wife's  release  of  dower 704 

(/)      Testamentary  gift  in  lieu  of  dower 705 

if)    Estoppel 708 

(g)    Statute  of  limitations 708 

(6)  Assignment  to  widow  of  her  dower 708 

e.  Homestead 711 


TABLE   OF   CONTENTS.  Xlll 

CHAPTER    II. 

Estates  as  to  Quantity  and  Quality  :   Estates  Less  Than 

Freehold. 

PAGE. 

I.  Nature  of  leaseholds  in  general 713 

1.  Real  or  personal  interests  in  land 713 

2.  Leaseholds  are  to  be  distinguished  from  — 713 

a.  Cases  in  which  occupant  of  land  is  in  as  servant  of  owner..   713 

b.  Cases  of  contracts  for  "  lodgings  " ...   717 

c.  Cases  of  cultivating  a  crop  on  shares 72 

d.  Cases  of  leases  in  fee  reserving  a  fee-farm  rent 721 

e.  Agreements  for  lease 721 

f.  An  interesse  termini 722 

II.  Estates  for  Years  or  "  Terms  " 724 

1.  The  essential  feature  of  a  term  —  certainty  as  to  commencement, 

duration,  and  termination 724 

a.  It  is  a  sale  of  the  land  for  such  fixed  period 725 

b.  The  term  may  be  created  to  commence  in  futuro. .    728 

c.  The  term  may  be  subject  to  a  condition   subsequent   or  to  a 

limitation  express  or  implied 731 

d.  The  term  may  end  (before  the  time  fixed)  by  forfeiture,  sur- 

render,  merger,  or  the  exercise  of  the  power  of  eminent 
domain 733 

e.  Effect  of  destruction  of  the  premises  in  whole  or  part 733 

/.   Holding  over  the  term 735 

(1)  When  tenant  will  be  held  for  another  year 735 

(2)  When  he  may  claim  to  be  a  tenant  at  sufferance 738 

2.  Creation  of  the  term 741 

a.     By  deed  or  other  writing  or  orally 7_jr 

3.  Alienation  of  the  term , 7^3 

a.  Assignment  or  subletting 743 

b,  Restraints  on  alienation  of  a  term 749 

4.  Alienation  of  the  rent  or  of  the  "  reversion  " 740 

5.  Rights  and  duties  of  landlord  and   tenant  independent  of  cove- 

nants    753 


a.   Landlord 


753 


(1)  May  protect  reversion,  but  has   no  action  for  an  inva- 

sion of  the  possessory  right 753 

(2)  Distress  for  rent 754 

b.  Tenant 754 

(1)  Has  right  to  estovers  and  emblements,  but  must  not 

commit  waste 754 

(2)  Is  estopped  to  deny  his  landlord's  title 758 

6.  Rights  under  covenants  implied  in  law . . .   758 

a.   Implied  covenant  for  quiet  enjoyment 758 

7.  Express  covenants.   ... 764 

a.   For  renewal  of  a  lease 764 

III.  Estates  at  will 767 

1.   How  created 767 

a.   By  express  agreement  therefor 767 


XIV  TABLE   OF   CONTENTS. 

PAGE. 

b.  By  implication  of  law 769 

(1)  Tenant  enters  under  void  parol  lease  or  parol  contract 

for  a  sale 769 

2.   Termination  of  tenancy  at  will 771 

a.  By  express  determination  of  the  will.     Notice 771 

b.  By  implied  determination  of  the  will   772 

(1)  Transfer  of  interest  of  either  party 772 

VI.  Estates  from  year  to  year 773 

1.  How  they  arise 773 

a.  By  express  agreement 773 

b.  By  implication  of  law 775 

2.  Alienability,  etc 777 

3.  Termination.     Notice 777 

V.  Tenancy  at  sufferance 787 

CHAPTER  III. 

Licenses. 

I.  Nature  of  a  license 788 

1.  In  general 788 

2.  How  a  license  differs  from  a  leasehold  interest   788 

3.  How  a  license  differs  from  an  easement 788 

4.  Executed  and  executory  licenses 7S8 

II.  How  a  license  may  be  given 789 

1.   In  express  terms  or  by  implication 789 

III.  Assignability  of  license 793 

IV.  Revocation  of  license 795 

1.   When  irrevocable 795 

a.  An  executed  license ...    795 

b.  An  executed  license   to   interfere  with   or  obstruct  an  ease- 

ment   795 

c.  A  license  subsidiary  to  an  interest  or  valid  grant 798 

d.  By  equitable  estoppel  when   the   licensee  has  incurred  ex- 

pense in  consequence  of  the  fraud  of  the  licensor 798 

t.  Cases  where  licensee  has  paid  consideration,  or  has  incurred 
expense  in  executing  the  license  and  there  is  no  positive 

fraud 802 

/.In  all  other  cases  revocable 807 

CHAPTER  IV. 
Incorporeal  Interests  in  Land. 

I.   Nature  and  kinds 809 

1.  In  general 809 

2.  An  incorporeal  interest  may  be  as  for  a  fee,  or  for  life  or  a  lease- 

hold     809 

II.  Easements.... 809 

1.  Nature  in  genera] 809 

a.  Continuous  and  discontinuous.     Illustrations ....  809 

A.  Appendant  or  appurtenant,  or  in  .i^ross 810 


TABLE    OF    CONTENTS.  XV 

PAGE. 

2.  How  created 811 

a.  By  grant 811 

(i)  Express Sn 

(2)  Implied 812 

(a)  Implied  in  consequence  of  a  restrictive  covenant.  812 
(/')  Implied   where   owner  of  premises  sells  a  parcel 
for  which  he  has  created  special  advantages  to 

the  detriment  of  the  rest 812 

(r)  Implied  by   reference  in  deed  to  a  way  or  to  a 

map  showing  a  way 812 

b.  By  operation  of  law 813 

c.  By  prescription    814 

3.  Transfer  of  an  easement 814 

4.  Destruction  of  an  easement 814 

a.  Effect  of  release,  abandonment,  nonuser,  merger 814 

b.  Effect  of  license  to  owner  of  the  servient  estate,  or  one   act- 

ing under  him,  to  interfere  with  easement 817 

5.  Specific  easements 817 

a.  Ways 817 

(1)  Distinguish  ways  in  gross  and  highways 817 

(2)  Ways  of  necessity 817 

(3)  Repair  of  way 822 

(4)  Excessive  use  of  way 823 

b.  Lateral  and  subjacent  support 826 

(1)  Lateral  support 826 

(2)  Subjacent  support 832 

c.  Party-walls 834 

d.  Easements  in  water 836 

e.  Right  to  flow  lands 837 

/.   Easements  of  light  and  air 837 

6.  Public  (quasi)  easements  —  highways 844 

a.  Rights  ol  the  public 844 

b.  Rights  of  the  owner  of  the  fee 846 

III.  Common  or  profits  a  prendre 847 

IV.  Rents 848 

V.  Franchises 848 

CHAPTER  V. 
Equitable  Estates  and  Interests  in  Land 854 

CHAPTER  VI. 

Future  Estates  and  Interests  in  Land. 
I.  Kinds  of  future  estates,  the  characteristics   of  each   and  the 

MODE  OF  THEIR  CREATION .' 856 

I.   Reversions  and  interests,  and  possibilities  analogous   thereto.  . .  .   856 

a.  Reversions 856 

b.  Equitable  reversions 857 


XVI  TABLE   OF   CONTENTS. 

PAGE. 

c.  Possibilities  analogous  to  reversions 860 

(r)  The  feudal  escheat 860 

(a)  On  failure  of  heirs  to  a  fee 860 

(b)  On  the  dissolution  of  a  corporation  seized  of   real 

estate 860 

(2)  Feudal  forfeitures 865 

(a)  For  denying  tenure 865 

(b)  For  felony 865 

(3)  The  possibility  of  reverter  in  case  of  a  fee  upon  special 

limitation 866 

(4)  The  contingent  right  of  re-entry  in   case   there  should 

be  a  breach  of  a  condition  subsequent   866 

2.  Remainders 866 

a.  Vested  remainders 866 

b.  Contingent  remainders 868 

c .  Certain  special  cases . .    885 

(1)  Remainder  to  a  class         885 

(2)  Remainder  after  estate  tail 889 

(3)  Remainder  in  default  of  appointment  under  a  power. .    889 

(4)  Certain  remainders    under   the   statutory  definition  of 

the  term  "  vesting  " 890 

d.  Alternate  remainders 904 

e.  Acceleration  of  remainders    904 

3.  Executory  future  estates  and  interests 906 

a.  Shifting  executory  future  estates,  "  conditional  limitations"  907 

b.  Springing  executory  limitations 907 

II.  Special  rules  to  be  observed  in  creating  future  estates  subject  to 

A  CONDITION  PRECEDENT     ..        . 9I7 

i.   In  the  case  of  a  common-law  contingent  remainder 917 

2.  In  the  case  of  executory  future  interests 921 

3.  Statutory  substitutes  for  these   rules 921 

a.  The  rule  restricting  the  suspension  of  the  absolute  power  of 

alienation 921 

(1)  Estates  subject  to  a  condition   precedent   ...   92r 

(2)  Effect  of  a  spendthrift  trust     922 

b.  The  limitation  on  statutory  "  remainders  "    924 

4.  The  rule  restricting  accumulations  of   income 925 

III.  Descent,  devise  and  alienation  of  future  estates  and  interests  in 

LAND     925 

IV.  The  destruction  of  future  estates  and  interests  in  lands 930 

CHAPTER  VI r. 
Joint  Ownership  of  Interests  in  Lands. 

I.    KINDS  OF  JOINT  INTERESTS  AND  CHARACTERISTICS  OF  EACH 938 

i.  Estates  in  joint  tenancy 938 

2.  Estates  in  common 944 

3.  Estates  in  copan  enary 947 

4.  Estates  by  the  entirety 952 


TABLE   OF   CONTENTS.  xvii 

PAGE. 

5.  Estates  in  homestead 968 

6.  Community  property 968 

7    Estates  in  partnership 972 

II.  Incidents  of  joint  estates 972 

1.  Possession  and  disseisin 972 

2.  Waste 972 

3.  Repairs  and  improvements 973 

4.  Accounting  for  rents,  etc 976 

5.  Transfer,  descent,  etc. 978 

III.  Partition 978 

1.  Voluntary 978 

2.  Compulsory   979 


PART  V. 
Of  the  Law  of  Persons  in  Relation  to  Land. 


CHAPTER  I. 

Aliens. 

I.  Capacity  to  take  and  hold 980 

II.  Capacity  to  transfer  or  transmit  title 980 

CHAPTER   II. 

Infants. 

I.   Nature  of  an  infant's  transfer 981 

II.  Effect  of  judicial  sales  on   legal  character  of  infant's  interest 

in  realty 985 

CHAPTER   III. 

Married  Women. 

I.  Husband's  right  to  dissent  to  devise  or  conveyance  to  wife 986 

II.  Transfers  by  married  woman 987 

III.  Her  power  to  devise  her  lands  990 

IV.  Married  woman's  separate  estate  and  her  power  to  control  and 

dispose  of  the  same 993 

CHAPTER  IV. 

Persons  of  unsound  mind 994 

law  of  prop.   in  land —  d 


xviii  TABLE   OF    CONTENTS. 

CHAPTER  V. 
Corporations. 

PAGE. 

i .   Power  to  take  and  hold 99S 

2.   Power  to  convey  or  mortgage 1000 


PART  VI. 
Of  the  Acquisition  andTransfer  of  Interests  in  Land. 


CHAPTER  I. 

Title  by  Original  Acquisition. 

I .  Title  by  occupancy 1002 

II.  Title  by  accretion  or  accession  1002 

III.  Title  by  adverse  possession 1007 

1.  Preliminary  considerations 1007 

a.  Mere  possession  as  a  title 1007 

b.  Forcible  entries  and  detainers 1009 

2.  The  essentials  of  an  adverse  possession 1013 

a.  The  possession  must  be  actual  and  exclusive 1013 

b.  It  must  be  open,  visible  and  notorious 1016 

c.  It  must  be  with  hostile  intent 1016 

3.  What  lands  will  be  deemed  to  be  held  adversely 1021 

a.  When  no  color  of  title  in  disseisor 1021 

b.  When  disseisin  is  under  color  of  title 1023 

4.  Power  of  disseisee  to  convey  after  the  disseisin 103  i 

IV.  Title  by  Prescription 1056 

V.  Title  by  the  Statute  of  Limitations 1040 

1.   Essentials  for  such  title 1040 

a.  A  disseisin  and  an  adverse  possession 1040 

b.  The   adverse  possession   must   be   continuous  for  the  term 

fixed  by  the  statute.     Tacking 1040 

c   Exceptions  in  favor  of  person  under  a  disability 1043 

2.   Nature  of  the  title   1053 

VI.  Title  by  estoppel.    IODI 

1 .  Estoppel  by  deed 1061 

2.  Estoppel  in  pais — Equitable  estoppel   1064 

CHAPTER  II. 
Title  by  Derivative  Aquisition. 

I.    From   mii   Stan ro6g 

I  I      FROM  INDIVID1    M       BY  INVOLUNTARY  ALIENATION """I 

[.  Title  by  eminent  domain ">(") 


TABLE   OF   CONTENTS.  XIX 

PAGE 

2.  Title  by  marriage 1070 

3.  Title  by  bankruptcy 1070 

4.  Title  by  sale  under  an  execution 1072 

5.  Sales  by  guardians,  executors,  administrators,  etc 1073 

6.  Sales  by  judicial  decree 1073 

7.  Tax  sales 1073 

III.  From  individuals  by  alienation  inter  vivos 1073 

1.  Common-law  conveyances 1073 

a.  Primary 1073 

b.  Secondary 1073 

2.  Conveyances  operating  under  the  Statute  of  Uses 1073 

3.  Grants 1075 

4.  Modern  transfers io75 

a.  By  deed  or  by  parol 1075 

b.  Requisites  for  (and  of)  a  deed  of  conveyance !C>75 

(1)  Competent  parties 1075 

(2)  Real  property  to  be  conveyed 1077 

(3)  Words  of  conveyance 1080 

(4)  A  description   of    the   premises  sufficient  to  identify 

them 1081 

(a)  The  sufficiency  of  the  description 10S1 

(/')  What    will    pass    as    appurtenant    to    the    lands 

described 1082 

(5.)  Delivery  and  acceptance  of  the  deed 1085 

c.  Covenants  in  conveyances . 1094 

(1)  Covenants  for  title 1094 

(a)  Covenant  of  seisin 1094 

(/')  Covenant  against  incumbrances 1100 

(c)  Covenants  of  warranty  and  of  quiet  enjoyment.  1100 

(d)  Covenants  for  further  assurance 1102 

(e)  Special  covenants  as  to  title 1104 

(2)  Special  covenants 1105 

(a)  Restrictive  covenants 1105 

6.   Transfer  by  way  of  security:    mortgage 1105 

a.  Nature  of  a  mortgage:  at  law,  inequity 1105 

b.  What  constitutes  a  mortgage;  at  law;  inequity 1105 

<-.   Assignment  of  mortgage.     Subrogation    1111 

d.  Foreclosure 1118 

(1)  Strict  foreclosure 1118 

(2)  Foreclosure  by  action 1122 

(3)  Foreclosure  by  advertisement  or  under  power  of  sale.   1122 

IV.  Title  by  devise 1122 


CHAPTER  III. 
Title  by  descent  ...   1 127 


TABLE  OF  CASES. 


***  Where  n  is  prefixed  to  the 
but  is  either  digested  or  quoted  f 


page  number,   the  case  is   not  reported 
rom  in  a  note. 


Adams  v.  City  of  Cohoes 783 

Adams  v.  Ross 483 

Adams  v.  Smith 187 

Albany    Co.     Savings    Bank    v. 

McCarty, 647 

Albany  Fire  Ins.  Co.  v.  Bay 987 

Allis  v.  Billings 994 

Arnold  v.  Green . .  1115 

Arnold  v.  Patrick 1088 

Atkinson  v.  Baker 579 

Aurora  Agl.  &  Hort.  Soc.  v.  Pad- 
dock   1000 

Austin  v.  Sawyer 31 

Ayers  v.  Reidel 1016 

Babb  v.  Perley . .  27 

Babbitt  v.  Day 685 

Baker  v.  Oakwood 1053 

Baker  v.  Jordan 191 

Barker  v.  Bates .....  355 

Barnes  v.  Light 1018 

B.irry  v.  Merchants'  Exch.  Co..  998 

B  .tes  v.  Brown 1127 

B .itis  v.  Shraeder 460 

Ba  terman  v.  Albright 164 

Baxter  v.  Smith 986 

Becar  v.  F.ues 722 

Beckman  v.  Kreamer 360 

Be  r  ties  v.  Nun  an 952 

Binkley  v    Forkner    297 

Bishop  v.  Banks 382 

Bi shop  v.  Bishop 305 

Blackmore  v.  Boardman 764 

B  aisdell  v.  Railroad 793 

Blakemore  v.  Stanley   387 

Blakeslee  v.  Sincepaugh 1064 

Boatman  v.  Lasley. 810 

Bopp  v.  Fox 686 

Borland  (L*^see  of)  v.  Marshall,  629 

Bostick  v.  Blades         542 

Boykin  v.  Ancrum 615 

Brackett  v.  Goddard 170 

Bradley  v.  Bailey 409 

Bradstree*  v.  Clarke 55 

Brady  v.  Waldron 176 

Bramhall  v.  Ferris 605 

Brewster  v.  Hill 53 

Brooks  v.  Curtis 834 

Brookville    &    Metamora    Hyd. 

Co.  v.  Butler 141 

Brown  v.  Bronson 68S 

[* 


Clark 

Administrators 


Brown  v 
Brown's 

Bragg 

Burnett  v.  Burnett 

Burns  v.  Bryant 

Butterfield  v.  Reed.    .  .  . 
Byassee  v.  Reese 


Caldwell  v.  Fulton 

Calvert  v.  Aldrich 

Campbell  v.  Herron 

Cannon  v.  Barry.  

Carmichael  v.  Carmichael 

Cartwright,  In  re 

Caswell  v.  Districh 

Chamberlain,  In  re 

Clap  v.  Draper 

Clark  v.  Glidden n. 

Clark  v.  Harvey    

Clemence  v.  Steere 

Coates  v.  Cheever 

Cochran  v.  Cochran ;/. 

Cockrill  v.  Downey 

Codman  v.  Evans 

Cogswell  v.  Cogswell 

Colby  v.  Osgood 

Cole  v.  The  Lake  Co 

Collins  v.  Hasbrouck 

Conner  v.  Shepherd 

Congregational  Soc.  of  Halifax  v. 

Stark 

Cook  v.  Stearns 

Coolidge  v.   Learned 

Corning    v.    Troy    Iron    &     Nail 

Factory 

Coudert  v.   Cohn .... 

Cox  v.  James 

Craddock  v    Riddlesbarger 

Craig  v.   Leslie .... 

Crosdale  v.  Lanigan 

Cross  v.  Marston 

Cunningham  v.  Moody 

Curtiss  v.  Ayrault 

Daly  v.  Wise 

Dart  v.  Dart 

DeBlane  v.  Lynch 

Deerfield  v.  Arms 

Demarest  v.  Wynkoop 

Den  ex  Jem.  Johnson  v.  Morris.. 
Despard  v.  Churchill 

xil 


here, 

PAGE. 
992 

726 

551 
768 
8l6 
ISO 

I02 

973 
947 
433 
902 

423 
720 

173 
176 
807 
406 

450 
453 
609 

'74 
846 
607 
1 103 
489 

743 

683 

509 
4S0 
1036 

121 
780 
S12 
215 
71 
802 

239 
889 
126 

762 

1077 

968 

10S 

1047 

56 

4i 


XX11 


TABLE    OF    CASES. 


PAGE. 

Dick  v.  Doughten 701 

Doe  ex  dan.  Bastow  v.  Cox 767 

Doherty  v.  Matsell 1019 

Drake  v.  Wells 182 

Dubois  v.   Beaver 168 

Durando  v.   Durando 658 

Eaton  v.  B.  C.  &   M.  R.  R 1 

Edwards  v.  Bibb 671 

Ellithorpe  v.  Reidesil 217 

Evans  v.  Evans 669 


Farrar  v.  Stackpole 

Fay  v.  Muzzey ... 

Fears  v.  Brooks 

Ferguson  v.  

Ferguson  v.  Spencer 

Ferguson  v.  Tweedy 

First    Universalist     Soc.     of    N. 

Adams  v.   Boland 

Fisher  v.   Deering 

Fisherv.   Fields 

Floyd  v.  Carow   

Fontaine  v.    Boatmen's   Savings 

Institution 

Foss  v.  Crisp    

Foster  v.    Marshall .... 

Fowler  v.  Bott 

French  v.  Fuller 

French  v.  Marstin    

Garfield  v.  Hapgood 

Garwood  v.  N.  Y.  Cent.  &  Hud. 
R.  R.  R.  Co 

Gilmore  v.  Driscoll 

Gilpin  v.  Hollingsworth 

Goddard  v.  Winchell 

Goffv.  Kilts 

Goodrich  v.  Jones 

Goodright  v.  Cornish 

Goodwin  v.  Goodwin 

Grandona  v.  Lovdal. .    

Graves  v.  Berdan 

Graves  v.  Weld 

Green  v.  Armstrong 

Green  v.  Green 

Green  v.  Hewitt. .  

Greenwood  Lake  &  Port  Jervis 
K.  R.  Co.  v.  The  N.  Y.  &  Green- 
wood Lake  R.  R.  Co 

Grim  s  v.  Raglan d 


227 
339 
571 
423 
804 
628 

525 
75i 
505 
856 

664 
645 
622 

725 
753 
823 

323 

116 
826 

949 
109 

368 

255 

918 

8 

99 
733 
403 

38 
984 
866 


472 
1029 


Hale       McLea 134 

Hall  v.  Chaffee 925 

Halsey  v,  McCormick r.006 

Harriman  v.  Gray 704 

Harris  v.  Frink  ...   769 

Harris  v.  Scovel 254 

Haslem  v.  Lo<  k  wood 34<; 

I  [atfield  v.  Sneden 041 

I I  LUghabough  /,  i  lonald 93E 

Havens  v.  Sea  Shore  Land  Co..  026 

I  la  ■•  ley  1 ,  fames 919 

I  [aynes  v.  Aid  rich 735 


PAGE. 

Haynes  v.  Boardman 1042 

Haynes  v.  Sherman 922 

Heath  v.  Barmore 865 

Heath  v.  Williams 120 

Hecht  v.  Dettman 199 

Helm  v.  Helm 711 

Hennessy  v.  Patterson 868 

Heme  v.  Bembow 422 

Higgins  v.  Kusterer ~   149 

Hiles  v.  Fisher 963 

Hinchcliffe  v.  Shea 6dS 

Hirth  v.  Graham 34 

Hoban  v.  Cable 1081 

Hoffar  v.  Dement   951 

Hoffman  v.  Armstrong 97 

Hogan  v.  Curtin 546 

Holmes  v.  Seely 817 

Holmes  v.  Tremper 320 

Hopkinson  v.  Dumas 675 

Horn  v.  Keteltas 1106 

Houghton  v.  Hapgood 24 

House  v.  Jackson 901 

Howell  v.  Leavitt 1043 

Hoyle  v.  Plattsburgh  &  Montreal 

R.   R.  Co 248 

Hubbard  v.  Town 840 

Huff  v.  McCauley 76 

Hughs  v.  Pickering   1040 

Hunter  v.  Whitworth 637 

Ingersoll  v.  Sergeant 86 

Jackson  ex  dem.   Lathrop  v.  De- 

mont 1031 

Jackson      ex     dem.     McCrea    v. 

Mancius 612 

Jackson    ex    dem.   Van  Cortland 

v.  Parkhurst 7S7 

Jackson   ex  dem,  Weldon  v.  Har- 
rison   731 

Jackson  ex  dem.  Wells  v.  Wells,  513 
Jackson  &  Sharp  Co.  v.  The  P. 

W.  &  B.  R.  R.  Co 79S 

Jackson's  Deed,  In  re 890 

Jaques    v.    Trustees    of    M.     E. 

Church 93 

Johns  v.  Johns 14 

Johnson  v.  Geisriter 1070 

Johnson  v.  Haines 1133 

Johnson  v.  Johnson 398 

Johnson  v. Johnson    445 

Johnson  v.  Zink 1111 

Jones  v.  Jones 656 

Jordan  v.  McClure 930 

Kabley  v.  Worcester  Gas  Light 

Company 721 

Ken  yon  v.  See 907 

Kerr  v.  Kingsbury 332 

Kei  rains  v.  People 713 

Killmorev.  Howlett 179 

Kilroy  v.  Wood n  604 

Kittle  v.  Van  Dyke 665 

Konvalinka  v.  Schlegel 705 

Kuli  I  man  v.   I  Ice  lit 819 


TABLE   OF   CASES. 


xxiu 


PAGE. 

Lamb  v.  Burbank 1102 

Lane  v.   King....    197 

Lansing   Iron   &  Eng.  Works  v. 

Walker 290 

Larrowe  v.  Beam 708 

Lawrence  v.  Miller 653 

Leggett  v.  Perkins 587 

Lehndorf  v.  Cope 555 

Leighton  v.  Leighton 463 

Lemon  v.  Graham 499 

Leonard  v.  Burr 521 

Leonard  v.  Clough 257 

Lewis    v.    Ocean     Navigation    & 

Pier  Co 328 

Linahan  v.  Barr    319 

Livingston  v.  Proseus 1034 

Loring  v.  Bacon 100 

Loring  v.  Eliot 857 

Lothrop  v.  Thayer 437 

Loughran  v.  Ross 325 

Lushington  v.  Boldero 468 

Macauley  v.  Smith 1109 

McAvoy  v.  Medina 359 

McClellan  v.  Kellogg 1016 

M'Conico  v.  Singleton 370 

McCord  v.  Oakland  Quicksilver 

Mining  Co 396 

McCormick  Harvesting  Machine 

Co.  v.  Gates 581 

McCrea  v.  Marsh 807 

McGonigle  v.  Atchison 65 

McGregor  v.   Brown 449 

McKeage   v.  Hanover    Fire    Ins. 

Co 245 

McKinney  v.  Settles 1080 

McNeil  v.  Ames 749 

McRea  v.  Central  Nat'l  Bank  of 

Troy 271 

Magoun  v.  111.  Trust,  etc.,  Bk..  1122 

Makepeace  v.  Worden 845 

Mandelbaum  v.  McDonnell  .    . .  562 

March  v.  Berrier 70 

Marsellis  v.  Thalheimer 627 

Marshall  v.  Moseley 412 

Marvin    v.    Brewster  Iron    Min- 
ing Co 832 

Mather  v.  Chapman  ..    351 

Matthews  v.  Hudson n.  395 

Mayor  v.  Mabie 758 

Mayor  v.  O.  &  P.  Railroad  Co. .  1069 

Merritt  v.  Bartholick 1113 

Merritt  v.  Scott 419 

Mich.    Mutual    Life   Ins.   Co.    v. 

Cronk 309 

Middlebrook  v.  Corwin 344 

Miller  v.   Meers    1085 

Minnig  v.  Batdorff 885 

Mitchell  v.  Warner. 1094 

Moffatt  v.  Smith. 749 

Mooers  v.  Wait 466 

Moore  v.  City  of  New  York. . .«.  650 

Moore  v.  Littel 894 

Moore  v.  Smaw 374 

Moore  v.  Townsend     427 


V,\r,K. 

Morrison  v.  Semple 514 

Morse  v.  Proper 882 

Mott  v.  Palmer 286 

Munroe  v.  Hall 561 

Murdock  v.  Gifford 242 

Murdock  v.  Ratcliff n.  23 

Murray  v.  Cherrington 724 

Mut.  Life  Ins.  Co.  v.  Shipman.«.  652 

Nase  v.  Peck 54 

Needham  v.  Allison 347 

Nicoll  v.  N.  Y.  &  Erie  R.  R.  Co.  527 

Noble  v.  Sylvester 114 

Northern   Bank  of   Kentucky    v. 

Roosa 10 

Nudd  v.  Hobbs 844 

O'Brien  v.  Kusterer 237 

Ocean     Grove     Camp     Meeting 

Assoc,  v.  Asbury  Park 130 

Ogden  v.  Jennings 1082 

Overman  v.  Sasser 310 

Overturf  v.  Dugan 20 

Parham  v.  Thompson 214 

Parker  v.  Chance 969 

Parker  v.  Parker 550 

Parrott  v.  Barney 465 

Payne  v.  Becker 650 

Peck  v.  Ingersoll 745 

Peirce  v.  Goddard 307 

Penhallow  v.  Dwight 216 

People's  Gas  Co.  v.  Tyner 372 

Phelps  v.  Phelps 661 

Phelps  v.  Randolph 1009 

Phillips  v.  Covert 463 

Phillips  v.  Stevens 765 

Pickering  v.  Pickering 976 

Pike  v.  Galvin 1061 

Plumb  v.  Tubbs 383 

Prescott  v.  DeForest 754 

Price  v.  Pittsburgh,  F.  W.   &  C. 

R.  R.  Co 1089 

Priest  v.  Cummings 692 

Proprietors,  etc.  v.  Springer. .  .  .  1021 

Pugsley  v.  Aiken 773 

Pullen  v.  Rianhard 95 

Purdy  v.  Hayt 804 

Purner  v.  Piercy 160 

Pynchon  v.  Stearns 451 

Reckhow  v.  Schanck 772 

Rector  v.  Waugh 511 

Reeder  v.  Sayre 775 

Reese  v.  Jared 289 

Rexroth  v.  Coon 365 

Reyburn  v.  Wallace 609 

Reynolds  v.  Collin 13 

Keynolds  v.  Reynolds 695 

Rice  v.  Adams 270 

Rice  v.  B.  &  W.  R.  R.  Co 935 

Richardson  v.  Copeland 303 

Ricketts  v.  Dorrel 51 

Riley's  Administrator  v.  Riley. . .  26 

Ritchmyer  v.  Moiss   283 


TABLE    OF    CASES. 


PAGE. 

Robeson  v.  Pittenger S37 

Robinson  v.  Wheeler n.  441 

Rogers  v.  Gillinger 267 

Roseboom  v.  Van  Vechten 575 

Ross  v.  Boardman..    1 1 1 8 

Rowland  v.  Miller 388 

Ruckman  v.  Outwater 340 

Saltonstall  v.  Little 177 

Sanders  v.  Partridge 746 

Sarles  v.  Sarles. 450 

Scanlan  v.  Wright 980 

Schermerhorn  v.  Negus 567 

Schnebly   v.  Schnebly 680 

School  District  v.  Benson io59 

Seager  Estate,  In  re 454 

Sears  v.  Russell.    . .      1134 

Sexton  v.  Breese.. 211 

Sh  ldon  v    Sherman 356 

Siiendan  v.  House 890 

Saerin  v.  Brackett 1007 

Sherman  v.  Willett 209 

Skinner  v.  Wilder i  ?4 

Slocum   v.Seymour 151 

Smith  v.  Jewett 417 

Smith  v.  Littlefield 738 

Smith  v.  Price 163 

Smith  v.  Smith 657 

Snedeker  v.  Warring 231 

Snell  v.  Levitt 814 

Sparrow  v.  Pond 171 

Spencer  v    Austin 944 

Stall  v.  Wilbur 207 

State   Bank   of  Indiana  v.  State 

of  Indiana. .  .    860 

State   Savings    Bank  v.   Kerche- 

val 2?o 

Steffens  v.  Earle 777 

Sieib  v.  Whitehead 5S4 

Stelz  v.  Schreck. . 960 

Sterling  v.  Jackson     361 

Sterling  v.  Warden 789 

Sievens  v.  Rose 442 

Stewart  v.  Clark 619 

Stewart  v.  Doughty 407 

Stewart  v.  Drake 1100 

Stewart  v.  Neeley 918 

S,"w  v.  Chapin n.  605 

Strong  v.  Doyle 346 

Siull  v.  Rich  Patch  Ire  n  Co 1023 

Syracuse    Water  Co.    v.   City  of 

Syracuse 848 

Talamo  v.  Spitzmiller 741 

Talbot  v.  Cruger 330 

Taney  v.  Pah n ley 519 

Thomas  v.  Wyatt 1075 

Thornburg  v.  Wiggins 940 

■•:.  I  [orton 293 

'I  illinghast  v.  Bradford 583 

Toilet  v.  Wood    602 

'I  ripp  v.  1 1  .is.  eig 188 


PAGE. 

Trull  v.  Fuller 261 

Trustees  of  Delhi  v.  Youmans  .  .  133 

Trustees  of  the  Poor  v.  Pratt  . .  .  687 

Tryon  v.  Munson 538 

Turner  v.  Wright 391 

Tuttle  v.  Turner 1088 

Twitty  v.  Camp     570 

Tyson  v.  Post 260 

United  States  v.  Bostwick 435 

Upington  v.  Corpgan 533 

Vane  v.  Lord  Barnard 442 

Van  Ness  v.  Paca.d    312 

Van  Peit  v.  McGraw 400 

Van  Rensselaer  v.  Hays 81 

Van  Rensselaer  v.  Radcliff 475 

Verdin  v.  Slocum 1074 

Vernam  v.  Smith 756 

Vincent  v.  Spooner 689 

Voorhis  v.  Freeman 224 

Waddell  v.  Rattevv 932 

Wadhams    v.    Am.    Home    Mis- 
sionary Soc 990 

Walker  v.  Pierce 822 

Walker  v.  Sherman 218 

Walker  v.  Vincent 568 

Ward  v.  Cochran 1013 

Ward  v.  Kilpatrick 234 

Warner  v.  Tanner 576 

Warren  v.  Chambers IC03 

Washington   Ice  Co.  v.  Shortall,  136 

WTass  v.  Bucknam 640 

Watson  v.  Hunter 62 

Watson   v.  O'Herne n.  741 

Watson  v.  Watson 626 

Webb  v.  Town  send 7C9 

Webster  v.  Parker 42 

Welch  v.  Bunce 9S1 

Wheaton  v.  Andress 516 

Wheeler  v.  Hotchkiss 646 

Wheeler  v.  Kirkland 698 

Whipple  v.  Foot. . .    402 

White  v.  Arndt 335 

White  v.  Cutler 447 

White  v.  Foster 184 

White  v.  Howard 47 

White  v.  Manhattan  Railway  Co.  795 

While  v.  Maynard 717 

Whitesides  v.  Cooper 877 

Whitmarsh  v.  Cutting 4C6 

Wilcox  v.  Wheeler 502 

Williams  v.  Angell 930 

Williams   v.  Thorn 595 

Willis  v.  Moore    201 

Witmer's  Appeal 263 

Wood  v.  Fowler 146 

Wronkow  v.  <  )akley 705 

Wyman  v.  Brown 909 

Young  v.  Dake 728 


SELECTED    CASES 


LAW  OF  PROPERTY  IN  LAND. 


SELECTED    CASES 


THE    LAW   OF    PROPERTY   IN    LAND. 


PART    I. 
Of  the  Nature  and  Kinds  of  Property  in  Land. 


chapter  I. 
What  is   Meant  by  Property  in  Land. 

EATON   v.    BOSTON,    CONCORD    AND    MONTREAL 
RAILROAD. 

51  New  Hampshire,  504.  —  1872. 

Action  on  the  case,  brought  by  Eaton  against  the  Boston,  Con- 
cord and  Montreal  Railroad  for  damage  to  his  farm  during  a  freshet. 

Plaintiff's  land  lies  on  Baker  river;  some  distance  above  the  farm 
was  a  narrow  ridge  about  twenty-five  feet  high,  extending  westerly 
from  the  hills  on  the  east  to  the  river,  and  protecting  the  meadows 
below  from  floods.  Defendants  in  constructing  their  road  made  a 
deep  cut  through  this  ridge  in  consequence  of  which  the  waters  of 
the  river  in  time  of  flood  occasionally  flow  through  and  carry  sand, 
gravel  and  stones  upon  plaintiff's  land;  this  is  the  damage  com- 
plained of. 

The  court  below  ruled  pro  forma  for  the  plaintiff.  Defendants 
excepted,  and  now  appeal. 

Smith,  J. — *  *  *  It  is  virtually  conceded  that,  if  the  cut 
through  the  ridge  had  been  made  by  a  private  landowner,  who  had 
acquired  no  rights  from  the  plaintiff  or  from  the  Legislature,  he  would 
be  liable  for  the  damages  sought  to  be  recovered  in  this  action.  It 
seems  to  be  assumed  that  the  freshets  were  such  as,  looking  at  the 
history  of  the  stream  in  this  respect,  might  be  "  reasonably  expected 

[1] 


2  WHAT    IS    MEANT    BY    PROPERTY    IN    LAND.  [PART  I. 

occasionally  to  occur."  The  defendants  removed  the  natural  barrier 
which  theretofore  had  completely  protected  the  plaintiff's  meadow 
from  the  effect  of  these  freshets;  and,  for  the  damages  caused  to 
the  plaintiff  in  consequence  of  such  removal,  the  defendants  are  con- 
fessedly liable,  unless  their  case  can  be  distinguished  from  that  of 
the  private  landowner  above  supposed.  Such  a  distinction  is 
attempted  upon  two  grounds, — first,  that  the  plaintiff  has  already 
been  compensated  for  this  damage,  it  being  alleged  that  the  defend- 
ants have,  by  negotiation,  or  by  compulsory  proceedings,  purchased 
of  the  plaintiff  the  right  to  inflict  it;  second,  that  the  defendants 
are  acting  under  legislative  authority,  by  virtue  of  which  they  are 
entitled  to  inflict  this  damage  on  the  plaintiff  without  any  liability  to 
compensate  him  therefor.  \After  considering  the  first  ground  and  find- 
ing that  it  cannot  be  sustained,  the  opinion  proceeds  as  follows  :] 

The  defendants'  next  position  is,  that  the  plaintiff  is  not  legally 
entitled  to  receive  any  compensation,  but  is  bound  to  submit  to  the 
infliction  of  this  damage  without  any  right  of  redress.  The  argu- 
ment is  not  put  in  the  precise  words  we  have  just  used,  but  that  is 
what  we  understand  them  to  mean.  The  defendants  say  that  the 
legislative  charter  authorized  them  to  build  the  road,  if  they  did  it 
in  a  prudent  and  careful  manner;  that  they  constructed  the  road  at 
the  cut  with  clue  care  and  prudence;  and  that  they  cannot  be  made 
liable  as  tort-feasors  for  doing  what  the  Legislature  authorized  them 
to  do.  This  involves  two  propositions:  First,  that  the  Legislature 
have  attempted  to  authorize  the  defendants  to  inflict  this  injury  upon 
the  plaintiff  without  making  compensation;  and  second,  that  the 
Legislature  have  power  to  confer  such  authority.     *     *     * 

The  defendants  cannot  claim  protection  under  an  implied  power, 
where  an  express  power  would  be  invalid;  the  Legislature  cannot 
do  indirectly  what  they  cannot  do  directly.  Unless  an  express  pro- 
vision in  the  charter,  authorizing  the  infliction  of  this  injury  with- 
out making  compensation,  would  be  a  valid  exercise  of  legislative 
[lower,  the  defendants  cannot  successfully  set  up  the  plea  that  the 
injury  was  necessarily  consequent  upon  the  exercise  of  their 
i  hartered  powers,  and  therefore  impliedly  authorized.  The  defense, 
.  really  presents  this  question:  Have  the  Legislature  power  to 
a  ithorized  the  railroad  corporation  to  divert  the  waters  of  the  river. 
ing  a  natural  barrier,  so  as  to  cause  the  waters  "  sometimes 
in  Hoods  and  freshets  "  to  ll  >w  over  the  plaintiff's  land,  "  carrying 
i  stones  "  up  mi  his  farm,  without  making  any  pro- 
vision for  In    r  ompi  nsation? 

Although  tie-  Constitution  of  this  State  dots  not  contain,  in  any 
pne  i  lau  i  .  an  express  provision  requiring  compensation  to  be  made 


CHAP.  I.]     WHAT   IS    MEANT   BY    PROPERTY    IN    LAND.  3 

when  private  property  is  taken  for  public  uses,  yet  it  has  been  con- 
strued by  the  courts,  in  view  of  the  spirit  and  tenor  of  the  whole 
instrument,  as  prohibiting  such  taking  without  compensation;  and 
it  is  understood  to  be  the  settled  law  of  the  State,  that  the  Legisla- 
ture cannot  constitutionally  authorize  such  a  taking  without  com- 
pensation. Piscataqua  Bridge  v.  N.  H.  Bridge,  7  N.  H.  35,  pp.  66, 
70;  Perley,  C.  J.,  in  Petition  of  Mount  Washington  Road  Co.,  35  N.  H. 
134,  pp.  141,  142;  Sargent,  J.,  in  Eastman  v.  Amoskeag  Manuf.  Co., 
44  N.  H.  143,  p.  160;  State  v.  Franklin  Falls  Co.,  49  N.  H.  240,  p. 
251.  The  counsel  for  the  defendants  have  not  been  understood  to 
question  the  correctness  of  this  interpretation  of  the  Constitution. 

The  vital  issue  then  is,  whether  the  injuries  complained  of  amount 
to  a  taking  of  the  plaintiff's  property,  within  the  constitutional 
meaning  of  those  terms.  It  might  seem  that  to  state  such  a  ques- 
tion is  to  answer  it;  but  an  examination  of  the  authorities  reveals  a 
decided  conflict  of  opinion.  The  constitutional  prohibition  (which 
exists  in  most,  or  all,  of  the  States)  has  received,  in  some  quarters, 
a  construction  which  renders  it  of  comparatively  little  worth,  being 
interpreted  much  as  if  it  read:  "  No  person  shall  be  divested  of  the 
formal  title  to  property  without  compensation,  but  he  may,  without 
compensation,  be  deprived  of  all  that  makes  the  title  valuable." 
To  constitute  a  "  taking  of  property,"  it  seems  to  have  sometimes 
been  held  necessary  that  there  should  be  "  an  exclusive  appropria- 
tion," "  a  total  assumption  of  possession,"  "  a  complete  ouster, "  an 
absolute  or  total  conversion  of  the  entire  property,  "  a  taking  the 
property  altogether."  These  views  seem  to  us  to  be  founded  on  a 
misconception  of  the  meaning  of  the  term  "  property"  as  used  in 
the  various  State  constitutions. 

In  a  strict  legal  sense,  land  is  not  "  property,"  but  the  subject  of 
property.  The  term  "  property,"  although  in  common  parlance 
frequently  applied  to  a  tract  of  land  or  a  chattel,  in  its  legal  signifi- 
cation "  means  only  the  rights  of  the  owner  in  relation  to  it."  "  It 
denotes  a  right  ....  over  a  determinate  thing."  "  Property  is  the 
right  of  any  person  to  possess,  use,  enjoy,  and  dispose  of  a  thing." 
Seldon,  ).,  in  Wynehamer  v.  The  People,  13  N.  Y.  378,  p.  433;  1 
Blackstone  Com.  138;  2  Austin  on  Jurisprudence  (3d  ed.),  817,  818. 
If  property  in  land  consists  in  certain  essential  rights,  and  a  physical  \ 
interference  with  the  land  substantially  subverts  one  of  those  rights, 
such  interference  "  takes, ''pro  tanto,  the  owner's  "  property."  The 
right  of  indefinite  user  (or  of  using  indefinitely)  is  an  essential  quality 
or  attribute  of  absolute  property,  without  which  absolute  property 
can  have  no  legal  existence.  "  Use  is  the  real  side  of  property." 
This   right  of   user   necessarily   includes    the    right   and    power    of 


4  WHAT   IS    MEANT   BY    PROPERTY   IN    LAND.  [PART  I. 

excluding  others  from  using  the  land.  See  2  Austin  on  Jurisprudence 
(3d  ed.),  836;  Wells,  J.,  in  Walker  v.  O.  C.  IV.  fi.  R.,  103  Mass.  10,  p. 
14.  From  the  very  nature  of  these  rights  of  user  and  of  exclusion, 
it  is  evident  that  they  cannot  be  materially  abridged  without,  ipso 
facto,  taking  the  owner's  "property."  If  the  right  of  indefinite 
user  is  an  essential  element  of  absolute  property  or  complete  owner- 
ship, whatever  physical  interference  annuls  this  right  takes  "  prop- 
erty,"—  although  the  owner  may  still  have  left  to  him  valuable 
rights  (in  the  article)  of  a  more  limited  and  circumscribed  nature. 
He  has  not  the  same  property  that  he  formerly  had.  Then,  he  had 
an  unlimited  right;  now,  he  has  only  a  limited  right.  His  absolute 
ownership  has  been  reduced  to  a  qualified  ownership.  Restricting 
A.'s  unlimited  right  of  using  one  hundred  acres  of  land  to  a  limited 
right  of  using  the  same  land,  may  work  a  far  greater  injury  to  A. 
than  to  take  from  him  the  title  in  fee  simple  to  one  acre,  leaving 
him  the  unrestricted  right  of  using  the  remaining  ninety-nine  acres. 
Nobody  doubts  that  the  latter  transaction  would  constitute  a  "  tak- 
ing of  property."     Why  not  the  former? 

If,  on  the  other  hand,  the  land  itself  be  regarded  as  "  property," 
the  practical  result  is  the  same.  The  purpose  of  this  constitutional 
prohibition  cannot  be  ignored  in  its  interpretation.  The  framers  of 
the  Constitution  intended  to  protect  rights  which  are  worth  protect- 
ing; not  mere  empty  titles,  or  barren  insignia  of  ownership,  which 
are  of  no  substantial  value.  If  the  land,  "  in  its  corporeal  sub- 
stance and  entity,"  is  "  property,"  still,  all  that  makes  this  property 
of  any  value  is  the  aggregation  of  rights  or  qualities  which  the  law 
annexes  as  incidents  to  the  ownership  of  it.  The  constitutional  pro- 
hibition must  have  been  intended  to  protect  all  the  essential  ele- 
ments of  ownership  which  make  "  property  "  valuable.  Among 
these  elements  is,  fundamentally,  the  right  of  user,  including,  of 
course,  the  corresponding  right  of  excluding  others  from  the  use. 
See,  Comstock,  J.,  in  Wynehamer  v.  The  People,  13  N.  Y.  378,  p.  396. 
A  physical  interference  with  the  land,  which  substantially  abridges 
this  right,  takes  the  owner's  "  property  "  to  just  so  great  an  extent 
as  he  is  thereby  deprived  of  this  right.  "  To  deprive  one  of  the  use 
of  his  land  is  depriving  him  of  his  land;  "  for,  as  Lord  Coke  said,  — 
"What  is  the  land  but  the  profits  thereof?"  Sutherland,  J.,  in 
People  v.  Kerr,  37  Barb.  357,  p.  399;  Co.  Litt.,  \b.  The  private 
injury  is  thereby  as  completely  effected  as  if  the  land  itself  were 
"  physically  taken  away." 

The  principle  must  be  the  same  whether  the  owner  is  wholly 
deprived  of  the  use  of  Ids  land,  or  only  partially  deprived  of  it; 
although  the  amount  or  value  of  the   property   taken   in   the    two 


CHAP.   I.]     WHAT   IS   MEANT   BY    PROPERTY    IN   LAND.  5 

instances  may  widely  differ.  If  the  railroad  corporation  take  a  strip 
four  rods  wide  out  of  a  farm  to  build  their  track  upon,  they  cannot 
escape  paying  for  the  strip  by  the  plea  that  they  have  not  taken  the 
whole  farm.  So  a  partial,  but  substantial,  restriction  of  the  right 
of  user  may  not  annihilate  all  the  owner's  rights  of  property  in  the 
land,  but  it  is  none  the  less  true  that  a  part  of  his  property  is  taken. 
Taking  a  part  "  is  as  much  forbidden  by  the  Constitution  as  taking 
the  whole.  The  difference  is  only  one  of  degree;  the  quantum  of 
interest  may  vary,  but  the  principle  is  the  same."  See  6  Am.  Law 
Review,  197-198;  Lawrence,  J.,  in  Nevins  v.  City  of  Peoria,  41  111. 
502,  p.  511.  The  explicit  language  used  in  one  clause  of  our  Con- 
stitution indicates  the  spirit  of  the  whole  instrument.      "  No  part  of 

a  man's  property  shall  be  taken "   Constitution  of  N.  H.,  Bill 

of  Rights,  article  12.  The  opposite  construction  would  practically 
nullify  the  Constitution.  If  the  public  can  take  part  of  a  man's 
property  without  compensation,  they  can,  by  successive  takings  of 
the  different  parts,  soon  acquire  the  whole.  Or,  if  it  is  held  that 
the  complete  divestiture  of  the  last  scintilla  of  interest  is  a  taking 
of  the  whole  for  which  compensation  must  be  made,  it  will  be  easy 
to  leave  the  owner  an  interest  in  the  land  of  infinitesimal  value. 

The  injury  complained  of  in  this  case  is  not  a  mere  personal  incon- 
venience or  annoyance  to  the  occupant.  Two  marked  characteristics 
distinguish  this  injury  from  that  described  in   many  other  cases. 

First,  it  is  a  physical  injury  to  the  land  itself,  a  physical  inter- 
ference with  the  rights  of  property,  an  actual  disturbance  of  the 
plaintiff's  possession.  Second,  it  would  clearly  be  actionable  if  done 
by  a  private  person  without  legislative  authority.  The  damage  is 
"  consequential,"  in  the  sense  of  not  following  immediately  in  point 
of  time  upon  the  act  of  cutting  through  the  ridge,  but  it  is  what  Sir 
William  Erie  calls  "  consequential  damage  to  the  actionable  degree." 
See  Brands.  H.  6°  C.  R.  Co.,  Law  Reports,  2  Queen's  Bench,  223, 
p.  249.  These  occasional  inundations  may  produce  the  same  effect 
in  preventing  the  plaintiff  from  making  a  beneficial  use  of  the  land 
as  would  be  caused  by  a  manual  asportation  of  the  constituent 
materials  of  the  soil.  Covering  the  land  with  water,  or  with  stones, 
is  a  serious  interruption  of  the  plaintiff's  right  to  use  it  in  the  ordi- 
nary manner.  If  it  be  said  that  the  plaintiff  still  has  his  land,  it  may 
be  answered,  that  the  face  of  the  land  does  not  remain  unchanged, 
and  that  the  injury  may  result  in  taking  away  part  of  the  soil  ("  and, 
if  this  may  be  done,  the  plaintiff's  dwelling-house  may  soon  follow") ; 
and  that,  even  if  the  soil  remains,  the  plaintiff  may,  by  these  occa- 
sional submergings,  be  deprived  of  the  profits  which  would  otherwise 
grow  out  of  his  tenure.      "  His  dominion  over  it,  his  power  of  choice 


6  WHAT   IS    MEANT   BY    PROPERTY    IN    LAND.  [PART  I. 

as  to  the  uses  to  which  he  will  devote  it,  are  materially  limited." 
Brinkerhoff,  J.,  in  Reeves  v.  Treasurer  of  I Vood  County,  8  Ohio  St. 
333,  P-  346. 

The  nature  of  the  injury  done  to  the  plaintiff  may  also  be  seen  by 
adverting  to  the  nature  of  the  right  claimed  by  the  defendants.   *    *    * 

In  asserting  the  right  to  maintain  the  present  condition  of  things 
as  to  the  cut,  the  defendants  necessarily  assert  the  right  to  produce 
all  the  results  which  naturally  follow  from  the  existence  of  the  cut. 
/  In  effect,  they  thus  assert  a  right  to  discharge  water  on  to  the 
plaintiff's  land.  Such  a  right  is  an  easement.  A  right  of  "  occa- 
sional flooding"  is  just  as  much  an  easement  as  a  right  of  "  per- 
manent submerging;  "  it  belongs  to  the  class  of  easements  which 
"  are  by  their  nature  intermittent  —  that  is,  usable  or  used  only  at 
times."  See  Goddard's  Law  of  Easements,  125.  If  the  defendants 
had  erected  a  dam  on  their  own  land  across  the  river  below  the 
plaintiff's  meadow,  and  by  means  of  flash-boards  thereon  had  occa- 
sionally caused  the  water  to  flow  back  and  overflow  the  plaintiff's 
meadow  so  long  and  under  such  circumstances  as  to  give  them  a 
prescriptive  right  to  continue  such  flowage,  the  right  thus  acquired 
would  unquestionably  be  an  "easement."  The  right  acquired  in 
that  case  does  not  differ  in  its  nature  from  the  right  now  claimed. 
In  the  former  instance,  the  defendants  flow  the  plaintiff's  land  by 
erecting  an  unnatural  barrier  below  his  premises.  In  the  present 
instance,  they  flow  his  land  by  removing  a  natural  barrier  on  the 
land  above  his  premises.  In  both  instances,  they  flow  his  land  by 
making  "  a  non-natural  use  "  of  their  own  land.  In  both  instances, 
they  do  an  act  upon  their  own  land,  the  effect  of  which  is  to  restrict 
or  burden  the  plaintiff's  ownership  of  his  land  (see  Leconfield  v. 
Lonsdale,  Law  Reports,  5  Com.  Pleas,  657,  p.  696);  and  the  weight 
of  that  burden  is  not  necessarily  dependent  upon  the  source  of  the 
water,  whether  from  below  or  above.  See  Bell,  J.,  in  Tillotson  v. 
Smith,  32  N.  H.  90,  pp.  95-96.  In  both  instances  they  turn  water 
upon  the  plaintiff's  land  "  which  does  not  flow  naturally  in  that 
|ila<  <■  "  Jf  the  right  acquired  in  the  former  instance  is  an  easement, 
equally  so  must  be  the  right  claimed  in  the  latter.  If,  then,  the 
claim  set  up  by  the  defendants  in  this  case  is  well  founded,  an  ease- 
ment is  already  vested  in  them.  An  easement  is  property,  and  is 
within  the  protection  of  the  constitutional  prohibition  now  under 
consideration.  If  the  defendants  have  acquired  this  easement,  it 
cannot  be  taken  from  them,  even  for  the  public  use,  without  com- 
it ion.  But  the  right  acquired  by  the  defendants  is  subtracted 
from  the  plaintiff's  ownership  of  the  land.  Whatever  interest  the 
defendants  have  acquired   in  this  respect  the  plaintiff  has  lost.     If 


CHAP.   I.]     WHAT    IS    MEANT    BY    PROPERTY    IN   LAND.  7 

what  they  have  gained  is  property,  then  what  he  has  lost  is  prop- 
erty. If  the  easement,  when  once  acquired,  cannot  be  taken  from 
the  defendants  without  compensation,  can  the  defendants  take  it 
from  the  plaintiff  in  the  first  instance  without  compensation?  See 
Brinkerhoff,  J.,  ubi  sup.;  Selden,  J.,  in  Williams  v.  N.  Y.  Central 
R.  R.,  16  N.  Y.  97,  p.  109.  An  easement  is  all  that  the  railroad 
corporation  acquire  when  they  locate  and  construct  their  track 
directly  over  a  man's  land.  The  fee  remains  in  the  original  owner. 
Blake  v.  Rich,  34  N.  H.  282.  Yet  nobody  doubts  that  such  location 
and  construction  is  a  taking  of  property,"  for  which  compensation 
must  be  made.  See  Redfield,  J.,  in  Hatch  v.  Ft.  Central  R.  R., 
25  Vt.  49,  p.  66.  What  difference  does  it  make  in  principle  whether 
the  plaintiff's  land  is  incumbered  with  stones,  or  with  iron  rails  ? 
Whether  the  defendants  run  a  locomotive  over  it,  or  flood  it  with 
the  waters  of  Baker's  river?  See  Wilcox,  J.,  in  March  v.  P.  &  C.  R. 
R.,  19  N.  H.  372,  p.  380;  Walworth,  Chancellor,  in  Canal  Coni'rs  and 
Canal  Appraisers  v.   The  People,  5  Wendell,  423,  p.  452.      *     *     * 

We  think  that  here  has  been  a  taking  of  the  plaintiff's  property; 
that,  as  the  statutes  under  which  the  defendants  acted  make  no  pro- 
vision for  the  plaintiff's  compensation,  they  afford  no  justification; 
that  the  defendants  are  liable  in  this  action  as  wrongdoers;  and 
that  the  ruling  of  the  court  was  correct.  [The  court  then  proceeds  to 
consider  the  prior  decisions.      This  part  of  the  opinion  is  omitted  here.] 

Exceptions  overruled. 


CHAPTER    II. 

Real  and  Personal  Property. 
I.  What  estates  and  interests  in  land  are  real ;  what  are  personal. 

i.   Leasehold  Interests  in  Land. 

GOODWIN  p.   GOODWIN. 

33  Connecticut,  314.  —  1S66. 

Submission  to  the  Superior  Court  upon  an  agreed  statement  of 
facts.  The  widow,  executor  and  heirs-at-law  of  Horace  Goodwin, 
deceased,  are  the  parties  to  the  submission.  The  case  was  reserved 
for  the  advice  of  the  Supreme  Court  of  Errors.  The  facts  appear  in 
the  opinion. 

Park,  J.  —  Horace  Goodwin,  late  of  Hartford,  deceased,  after 
devising  and  bequeathing  certain  property  to  his  wife,  declared  his 
purpose  to  be  that  the  devise  and  bequest  should  not  bar  her  right 
of  dower  in  his  estate. 

A  part  of  the  property  that  he  died  possessed  of  consisted  of  an 
estate  for  the  term  of  nine  hundred  and  ninety-nine  years,  with  an 
annual  rent  of  forty-six  dollars;  and  the  first  question  submitted  for 
our  consideration  is,  whether  the  wife  is  entitled  to  dower  in  this 
part  of  his  estate. 

If  an  estate  for  so  long  a  term  of  years  can  be  regarded  as  real  estate, 
then  dower  should  be  allowed,  otherwise  not.  Revision  of  1866,  p. 
421.  The  general  principle  is,  that  an  estate  for  years  is  less  than 
a  freehold,  and  is  nothing  more  than  a  chattel  real,  and  is  classed  as 
personal  property.  1  Swift  Dig.  S;,  167.  Does  a  long  term  of  years 
stand  upon  different  ground  in  this  respect  from  a  short  one?  Of 
course  the  value  of  the  reversionary  interest  depends  upon  the 
length  of  time  the  estate  for  years  is  to  continue,  and  such  value  in 
the  present  case  is  exceedingly  small,  — too  small  for  any  substan- 
tial benefit;  but  does  the  difference  in  the  value  of  reversionary 
interests  make  any  difference  in  principle  ? 

If    this  estate  had   been   created   nine   hundred  and  ninety  years 

.  it  would  be  conceded  that  Horace  Goodwin  would  have  had 

only  a  chattel  interest.     If  then  at  the  commencement  it  is  to  be 

a   fee  simple,  at   what   time  will  it  change  to  a  chattel 

realv     The  claim  of  the   plaintiff  involves   the  necessitv  of  fixing  a 

[8] 


I.   i.J  PERSONAL   INTERESTS   IN   LAND.  9 

time,  and  the  absurdity  of  holding  that  immediately  before  the  time 
shall  arrive  the  estate  will  be  a  fee  simple,  and  immediately  after  a 
chattel  interest  merely.  We  are  unable  to  discover  any  difference 
in  principle  in  this  class  of  estates,  whether  they  are  to  endure  for  a 
short  or  a  long  period  of  time,  and  we  are  satisfied  that  no  distinc- 
tion can  be  found  in  the  common  law.  It  is  true  that  in  the  case  of 
Brain.ird  v.  The  Town  of  Colchester \  31  Conn.  407,  Judge  Dutton, 
in  giving  the  opinion  of  the  court,  says  in  regard  to  an  estate  like 
the  one  under  consideration,  with  the  exception  that  in  that  case  a 
gross  sum  was  paid  as  the  consideration  for  the  term:  —  "  For  all 
practical  purposes  it  is  a  fee  simple.  The  reversion  becomes  a  mere 
imaginary  estate."  The  learned  judge  used  this  language  in  refer- 
ence to  the  extent  of  the  estate,  and  the  fact  that  substantially  it 
contained  all  the  property,  which  is  obviously  true.  It  is  equally 
obvious  that  there  is  some  value  to  the  reversionary  interest,  for  it 
will  constantly  increase,  and  at  the  end  of  the  nine  hundred  and 
ninety-nine  years  will  be  equal  in  value  to  the  entire  property.  The 
learned  judge  did  not  mean  to  declare  that,  in  the  administration  of 
justice  between  party  and  party,  the  law  regards  such  an  estate  as  a 
fee  simple,  and  that  it  should  be  treated  as  such,  which  is  the  ques- 
tion now  before  us.  Judge  Swift,  in  his  Digest,  vol.  1,  page  87, 
says:  —  "A  lease  for  a  thousand  years  is  considered  only  as  an  estate 
for  years,  and  the  lessee  has  only  a  chattel  interest,  which  by  the 
common  law  goes  into  the  hands  of  his  executor  or  administrator  at 
his  decease."  Washburn  in  his  first  volume  on  Real  Property,  page 
153,  says:  —  "  If,  therefore,  the  estate  of  the  husband  be  a  term  of 
years,  his  wife  cannot  claim  dower  out  of  it  at  common  law,  no 
matter  how  long  it  is  to  continue,  nor  though  it  be  renewable 
forever."  The  cases  of  Ware  v.  Washington,  6  Smedes  &  Marsh, 
737,  and  Spangler  v.  Stan/er,  1  Maryland  Ch.  Dec.  36,  are  to  the 
same  effect.  See  also  4  Kent  Com.,  35,  40,  and  Cruise's  Digest, 
title  Dower.  We  are  referred  to  no  case  where  the  contrary  doc- 
trine has  expressly  been  held,  but  a  case  in  the  second  of  Root's 
Reports,  page  15,  has  been  cited,  where  the  levy  of  an  execution 
upon  an  estate  for  the  term  of  nine  hundred  and  ninety-nine  years 
as  real  estate  was  held  good.  But  this  decision  was  made  on  the 
ground  that  the  case  came  within  the  spirit  of  the  statute  in  regard 
to  the  levy  of  executions  on  real  estate,  and  that  without  such  con- 
struction the  property  would  be  exempt  from  execution. 

On  the  whole  we  are  satisfied  that  the  common  law  deprives  the 
plaintiff  of  the  right  of  dower  in  the  Market  street  property,  and 
so  we  advise  the  Superior  Court.  [Certain  other  questions  are 
considered  in  the  opinion;  these  are  omitted  here .] 


IO  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.  CH.   II. 

NORTHERN  BANK  OF  KENTUCKY  v.  ROOSA. 

13  Ohio,  335.  —  1S44. 

Certiorari  to  the  Superior  Court  of  Cincinnati. 

Roosa  and  each  of  the  other  defendants  herein  obtained  judgments 
against  T.  B.  Coffin  at  the  October  term,  1842.  Executions  were 
issued  on  each  of  these  judgments  within  that  term  upon  lands  held 
by  Coffin  on  lease  for  ninety-nine  years,  renewable  forever.  The 
Northern  Bank  of  Kentucky  recovered  a  judgment  against  Coffin 
at  same  term,  which  was  levied  on  the  same  property  in  June,  1843. 
The  property  was  sold  on  the  Roosa  execution  and  the  money 
brought  into  court  for  distribution  among  the  judgment  creditors. 
Defendants  claim  that  the  surplus  fund  in  court  should  be  appro- 
priated to  the  satisfaction  of  their  judgments,  excluding  the  Bank, 
while  the  Bank,  on  the  other  hand,  claims  a  pro  rata  share  with  them. 

The  court  below  held  that  defendants  by  priority  of  levy  had 
obtained  priority  of  lien,  and  excluded  the  Bank  from  any  share  of 
the  fund. 

Birchard,  J.  — Two  questions  arise  in  this  case: 

1.  Are  judgments  liens  upon  permanent  leasehold  estates  for  one 
year? 

2.  Can  one  judgment,  by  a  levy  upon  lands  within  ten  days,  obtain 
a  preference  over  other  judgments  rendered  at  the  same  time,  and 
levied  within  the  year? 

The  solution  of  the  first  question  depends  upon  the  correctness  of 
an  opinion  of  this  court,  reported  in  Loring  v.  Melendy,  11  Ohio,  357. 
The  opinion  alluded  to,  was  upon  a  point  not  necessary  to  the 
determination  of  the  cause,  and  not  considered  by  all  the  members 
of  the  court  at  the  time.  Hence  the  remark  made  in  the  case  of 
Lessee  of  Boyd  v.  Talbert,  12  Ohio,  213,  "  the  question  whether  a 
lease  be  realty  or  personalty,"  is  open.  This  case  brings  the  sub- 
ject fairly  before  us,  and  is  the  point  upon  which  the  decision  must 
turn. 

It  is  not  doubted  that  at  common  law,  leasehold  estates  were  but 
chattel  interests.  Upon  the  death  of  the  owner,  they  vested  in  the 
<■■•.<•'  utor,  or  administrator,  and  not  in  the  heir,  and  were  subject  to 
tin-  debts  of  the  decedent  as  chattels. 

Adjudications  upon  these  points  had  been  so  frequent  that,  after 
tin-  reason  <>f  the  rule  had  ceased,  courts,  whose  office  is  to  declare 
tin-  law,  not  to  create  it,  felt  bound,  by  the  numerous  decisions;  and 
tin-  <  ommon  law,  in  this  respect,  was  the  law  of  Ohio,  until  modified 
by  legislative  enai  tment.     Tims  in    Bisbee's   Lessee  v.  //<r//t  3  Ohio, 


I.   i.J  PERSONAL    INTERESTS    IN    LAND.  II 

449,  it  was  held  that  a  lease  for  ninety-nine  years  was  liable  to  exe- 
cution as  a  chattel.  And  in  Reynolds  v.  Commissioners  of  Stark 
County,  5  Ohio,  204,  that  a  lease  for  ninety-nine  years,  renewable 
forever,  was  personal  property,  which,  on  the  owner's  decease, went 
to  the  executor.  If,  then,  the  legislation  of  the  State  had  not  affected 
the  rules  of  the  common  law,  the  determination  of  the  Superior 
Court  was  correct,  for  if  the  leasehold  interest  be  regarded  a  chat- 
tel, no  lien  attaches  prior  to  a  levy,  and  the  three  judgments  upon 
which  executions  were  issued  within  ten  days  after  the  close  of  the 
term  at  which  they  were  rendered,  gained  priority,  and  had  a  right 
to  a  pro  rata  division  of  the  proceeds  of  the  sale.  The  earliest 
statute  to  which  our  attention  has  been  called,  is  the  act  of  1818,  2 
Chase's  Stat.  1040,  requiring  leasehold  estates  to  be  conveyed  with 
the  same  formality  as  estates  of  freehold. 

Next  came  the  act  of  January  29,  1821,  which  provides  that  all 
lands  of  whatever  description,  lying  within  the  State,  the  owners  of 
which  hold  their  titles  by  the  tenure  of  permanent  leases,  "  shall,  in 
cases  of  judgment  had,  and  executions  levied  thereon,  be  considered 
as  real  estate."  Chase's  Stat.  1185;  Swan's  Stat.  289.  This  act 
has  never  been  repealed,  but  the  act  of  March  5,  1839,  Swan's  Stat. 
289,  has  been  thought  to  have  superseded  it.  Section  1  provides, 
"  that  permanent  leasehold  estates,  renewable  forever,  shall  be  sub- 
ject to  the  same  law  of  descent  and  distribution  as  estates  in  fee  are, 
or  may  be  subject  to;  and  sales  thereof,  upon  execution,  or  by  order 
of  the  court,  shall  be  governed  by  the  same  laws  that  now,  or  here- 
after may,  govern  such  estates  in  fee."  These  statutes  effect 
important  changes  in  the  common  law. 

1.  The  act  of  1821,  as  to  judgments  had,  makes  the  leasehold 
estate  real  estate  —  requires  courts  to  consider  it,  so  far  as  the  judg- 
ments are  concerned,  real  estate.  This  is  the  fair  construction  of 
the  language,  "  in  all  cases  of  judgments  had,  and  executions 
levied." 

It  follows,  then,  that  the  lien  of  a  judgment,  which  is  given  upon 
real  estate,  attaches  to  such  leasehold  estates,  because,  as  to  the 
judgment,  it  is  to  be  considered  real  estate.  So,  for  all  purposes 
connected  with  the  levy  and  sale,  and  of  the  rights,  either  of  judg- 
ment creditor,  or  judgment  debtor,  or  purchaser,  in  any  way  con- 
nected with  the  judgments,  executions,  and  levies. 

The  language  of  the  act  of  1829  is  different.  It  does  not  direct 
how  liens  shall  be  regarded  in  reference  to  "  judgments  had,"  and 
does  not,  therefore,  necessarily  supersede  the  act  of  1821.  The  two 
are  therefore  to  be  regarded  as  being  in  force.  Both  may  well  stand 
together.     The  legislative  intention  should  be  gathered  from  a  con- 


12  REAL   AND    PERSONAL    PROPERTY.     [PT.  I.  CH.  II. 

sideration  of  the  provisions  of  both.  Laws  in  pari materia  should  be 
construed  together.  We  hold,  then,  that  for  all  purposes  connected 
with  the  laws  regulating  judgments,  executions,  sales,  and  descents, 
permanent  leasehold  estates  are  to  be  regarded  as  if  they  were  free- 
holds, and  not  chattels. 

The  case  of  Reynolds  v.  Commissioners  of  Stark  County,  5  Ohio,  204, 
above  referred  to,  determined  in  1832,  was  a  bill  to  enforce  the 
specific  performance  of  a  contract  to  make  a  lease;  the  heirs  were 
held  to  be  not  the  proper  parties.  This  decision  may  well  be  recon- 
ciled with  this  opinion.  In  that  case  no  question  arose  under  the 
act  of  182 1,  or  the  acts  of  1837  and  1839,  and  it,  consequently,  can 
contain  nothing  conflicting  with  this  decision.  In  Murdock  et  at.  v. 
Ratdiff,  7  Ohio,  123,  the  question  was,  whether  the  estate  in  land 
of  the  Miami  University,  held  by  permanent  lease,  descended,  on 
the  decease  of  the  owner,  to  the  heir,  or  vested  in  the  administrator. 
In  pronouncing  the  opinion,  the  court  say:  '  The  only  statute  we 
find  on  this  subject  was  a  statute  which  declared  that  the  tenants, 
or  lessees,  shall  enjoy  all  the  rights  and  privileges  which  they  would 
be  entitled  to  enjoy  did  they  hold  their  lands  in  fee  simple;  a  pro- 
vision designed,  in  our  opinion,  to  secure  to  the  tenants  civil  and 
political  privileges,  not  to  change  the  quality  of  their  estates."  To 
reconcile  this  decision  with  our  construction  of  the  act  of  1821,  it  is 
only  necessary  to  observe  that  the  case  presented  no  question  con- 
cerning judgments  and  executions,  and  the  cause  was  decided  in 
1835,  before  the  other  acts  referred  to  were  passed. 

The  next  question  arises  under  the  act  of  March  1,  1831.  Swan's 
Stat.  467.  The  second  section  of  this  act  gives  a  lien  upon  the  lands 
within  the  county,  from  the  first  day  of  the  term  at  which  judgment 
was  rendered.  By  section  23  of  the  same  act,  no  judgment,  on  which 
execution  shall  not  have  been  taken  out,  and  levied  within  a  year, 
shall  operate  to  the  prejudice  of  any  other  bona  fide  judgment 
creditor,  etc.  By  section  4,  two  or  more  writs  issued  on  judgments, 
within  ten  days  after  their  rendition,  have  no  preference  to  each 
r;  so,  if  delivered  to  the  officer  on  the  same  day.  All  other 
writs  have  preference  in  the  order  of  their  delivery,  provided  "  that 
nothing  herein  contained  shall  be  so  construed  as  to  affect  any 
preferable  lien  whii  h  a  judgment  may  have  upon  lands,"  etc. 

These    sections   refer  to   liens  arising   both    from  judgments  and 
Se<  tion   2  gives  the  judgment  a  lien  on  lands  within  the 
county.  1   !  gives,  or  rather  recognizes,  a  lien  from  the  time 

of   the   levy,   both   upon    lands  and   personal  property.     The   latter 
ilates  the  lien  which   h   1  reates,  but  provides  against  any  inter- 
ference with  older  01    preferable  liens,     Section  23  creates  no  lien; 


I.   2. J      PERSONAL   INTERESTS:    ESTATES    PUR   AUTRE   VIE.  13 

it  merely  limits  it  in  the  given  case.  Let  us  apply  the  principles 
of  the  proviso  in  section  4  to  this  case.  The  defendants  each 
acquired  equal  liens  from  the  date  of  the  levies  made  upon  their 
executions;  but  the  plaintiff  had  a  lien  from  the  date  of  her  judg- 
ment, which  was  elder,  and  therefore  a  preferable  lien.  Under  the 
proviso  of  section  4,  it  would  overreach  the  right  of  defendants. 
They  are  therefore  thrown  back,  and  compelled  to  rely  on  their 
judgment  liens  created  by  section  2,  and  limited  by  section  23,  or 
lose  the  proceeds  of  their  sales;  relying  upon  their  judgments,  they 
have  equal  liens  with  the  plaintiff,  and  no  more.  The  money  should 
have  been  distributed  to  each  of  the  parties  pro  rata,  in  proportion 
to  the  amount  of  their  several  judgments,  and  in  failing  to  make  this 
equal  distribution  the  court  below  erred. 

Judgment  reversed. 


2.   Estates  pur  autre  vie. 

REYNOLDS  v.  COLLIN. 

3  Hill  (N.  Y.),  441.  —  1842. 

Costs  against  the  plaintiff  suing  as  administrator. 

The  plaintiff's  intestate  held  certain  premises  under  a  lease  for 
three  lives,  one  of  which  lives  continued  after  his  death.  Subse- 
quent to  the  intestate's  death,  the  defendant's  testator  occupied  the 
premises  under  the  plaintiff,  and  the  present  action  was  for  that  use 
and  occupation  of  the  property.  The  cause  having  been  referred, 
there  was  a  report  for  the  defendant  on  the  ground  that  the  claim 
was  barred  by  the  statute  of  limitations.  The  defendant  now 
moved  that  the  plaintiff  be  ordered  to  pay  the  costs  of  the  action. 

By  the  court,  Bronson,  J.  —  On  the  death  of  the  owner,  an  estate 
pur  autre  vie  becomes  a  chattel  real,  and  goes  as  assets  to  the 
executor  or  administrator  to  be  applied  and  distributed  as  part  of 
the  personal  estate  of  the  testator  or  intestate.  1  R.  S.  722,  sec.  6; 
2  Id.  82,  sec  6  '.  The  cause  of  action  accrued  after  the  death  of 
the  intestate,  and  the  plaintiff  did  not  necessarily  sue  in  his 
representative  character.  In  such  cases  it  is  well  settled  that  an 
executor  or  administrator  must  pay  costs  if  his  suit  fails. 

Motion  granted. 

1  New  York  Real  Property  Law,  §  24  — Ed. 


14  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

3.  Shares  of  Stock  in  Land-Holding  Corporations. 

JOHNS  v.  JOHNS. 

1  Ohio  State,  350.  —  1853, 

Petition  by  the  widow  of  Benjamin  Johns  to  have  dower  set  off 
to  her  in  certain  shares  of  railway  stock  owned  by  said  Johns  at  his 
decease.  The  executor  answers  alleging  that  such  shares  are  per- 
sonal and  not  real  estate. 

Thurman,  J.  —  The  Ohio  and  Pennsylvania  R.  R.  Co.  was  incor- 
porated February  24,  1S48.  46  Ohio  Local  Laws,  261.  The  fifth 
section  of  its  charter  provides  that  the  company  "  shall  have  all  the 
powers  and  privileges,  and  be  subject  to  all  the  restrictions  and  pro- 
visions of  the  act  regulating  railroad  companies,"  passed  February  11, 
184S.  46  Ohio  Laws,  40.  The  third  section  of  this  latter  act  declares 
that  the  shares  of  stock  in  the  companies  that  may  be  subject  to  its 
provisions,  "  shall  be  regarded  as  personal  property,  and  shall  be 
subject  to  execution  at  law."  It  is  therefore  manifest,  that  the 
petitioner  is  not  entitled  to  dower  in  the  ten  shares  of  the  stock  of 
the  Ohio  and  Pennsylvania  R.  R.  Co.,  for  they  are  clearly  person- 
alty. But  the  question  in  respect  to  the  stock  in  the  Mansfield  and 
Sandusky  City  R.  R.  Co.  is  not  so  easily  disposed  of.  For  that 
company  is  not,  so  far  as  the  case  shows,  subject  to  the  provisions 
of  said  act  of  February  11,  1848.  It  was  previously  chartered  and 
organized,  and  that  act  does  not  interfere  with  companies  created 
before  its  passage.  Turning  then  to  the  charter  of  the  company, 
we  find  in  it  no  provision  declaring  whether  its  stock  is  realty  or 
personalty.  We  are  thus  brought  to  the  general  question,  whether 
railroad  shares  in  Ohio  are,  in  the  absence  of  express  legislative 
enactment,  to  be  considered  as  real,  or  personal  estate.  This  ques- 
tion must  be  determined  by  a  reference  to  the  principle  of  the  com- 
mon law,  and  the  general  statutes  of  the  State,  that  have  a  bearing 
upon  it.  And  its  solution  is  not  without  difficulty;  for  as  to  the 
mon  law  the  adjudicated  cases  are  directly  conflicting,  and  when 
we  resort  to  our  statutes,  the  chief  aid  we  derive  is  from  analogies 
and  inference.      *      *      * 

By  a  statute  of  10  Anne,  th 2  mayor,  aldermen  and  common  council 
of  the  1  11  v  of  Bath,  their  successors  or  assigns,  or  such  persons  as 
they  should  appoint,  were  authorized  to  improve  the  navigation  of 
the  river  Avon,  and  t'>  charge  tolls  on  persons  and  property  trans- 
ported thereon.     *     *     * 

In  Buckeridge  v.  rngram,  decided  in  1795,  2  ^es-  Jr->  65r'  the  ques- 
tion was   directly    made,  whether  these  shares  were  personal  or  real 


T.  3]  PERSONAL   INTERESTS:    CORPORATE    STOCK.  1 5 

estate,  and  it  was  decided  that  they  were  real  estate  and  subject  to 
dower.  The  master  of  the  rolls  held  that  the  right  to  take  the  tolls 
was  an  incorporeal  hereditament  arising  out  of  realty  and  was  there- 
fore a  "  tenement." 

And  he  remarked:  "  I  have  no  difficulty  in  saying,  that  wherever 
a  perpetual  inheritance  is  granted,  which  arises  out  of  lands,  or  is  in 
any  way  connected  with,  or,  as  it  is  emphatically  expressed  by  Lord 
Coke,  exercisable  within  it,  it  is  that  sort  of  property  the  law 
denominates  real." 

The  principle  of  these  cases  was  followed,  and  possibly  extended, 
by  the  Supreme  Court  of  Connecticut,  in  1818,  in  the  case  of  Welles 
v.  Cozvles,  2  Conn.  567,  in  which  it  was  held  that  shares  of  an  incor- 
porated turnpike  company  are  real  estate.  The  right  to  the  tolls, 
said  the  Court,  "  is  a  right  issuing  out  of  real  property,  annexed  to 
and  exercisable  within  it  and  comes  within  the  description  of  an 
incorporeal  hereditament  of  a  real  nature,  on  the  same  principle  as 
a  share  in  the  New  River,  in  canal  navigations,  and  tolls  of  fairs  and 
markets;  "  citing  Drybutter  v.  Bartholomew,  2  Peere  Williams,  127, 
Habergham  v.  Vincent,  2  Ves.  Jr.  232 ;  and  The  King  v.  The  Inhabitants 
Chipping  Norton,  5  East,  239. 

And  in  answer  to  the  argument  that  the  individual  stockholders 
had  only  a  claim  on  the  company,  and  not  upon  the  realty,  and  that 
this  must  be  of  a  personal  nature,  the  Court  said:  "  But  the  stock- 
holders, as  members  of  the  company,  are  owners  of  the  turnpike 
road;  and  it  is  in  virtue  of  this  interest,  that  they  have  their  claims 
for  the  dividends,  or  their  respective  shares  of  the  toll.  It  is  not  a 
mere  claim  on  the  corporation."  This  decision  was  recognized  as 
law,  in  1822,  in  a  suit  between  the  same  parties,  4  Conn.  182,  though 
the  question  was  not  expressly  made. 

In  1835,  the  Supreme  Court  of  Pennsylvania  held  that  "a  toll- 
bridge  erected  by  two  individuals  across  a  river  between  their  lands, 
by  legislative  authority,  is  real  estate."  The  court  said  that  the 
right  was  "  not  only  a  right  arising  out  of  the  soil,  but  so  far  as  the 
abutments  of  the  bridge  are  concerned,  it  is  the  soil  itself."  Hurst 
v.  Meason,  4  Watts,  346.  It  is  to  be  observed,  however,  that  it  does 
not  appear  that  the  builders  were  incorporated. 

In  Price  v.  Price ' s  Heirs,  6  Dana,  107,  the  Court  of  Appeals  of 
Kentucky,  in  1S38,  held  that  the  stock  in  the  Lexington  and  Ohio 
Railroad  Company  is  real  estate.  Without  citing  any  adjudicated 
case,  the  Court  came  to  a  conclusion  which  is  thus  expressed: 
''  The  right  conferred  on  each  shareholder  is  unquestionably  an 
incorporeal  hereditament.  It  is  a  right  of  perpetual  ..duration ;  end 
though  it  springs  out  of  the  use  of  personalty,. -as  well  asr&nds  and 

\ 


l6  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CI1.  II. 

houses,  this  matters  not.  It  is  a  franchise  which  has  ever  been  classed 
in  that  ciass  of  real  estate  denominated  an  incorporeal  hereditament. ' ' 
On  the  other  hand,  the  Supreme  Court  of  Massachusetts,  in  1798, 
in  Russell  et  al.  v.  Temple  and  Others,  3  Dana's  Abr.  108,  held  that 
shares  in  incorporated  bridge  and  canal  companies  are  personalty. 
The  case  was  between  the  widow  and  heirs  of  Thomas  Russell,  the 
former  contending  that  the  shares  were  personal  property,  and  that 
consequently  she  was  entitled  to  a  distributive  portion  of  them,  and 
the  latter  insisting  that  they  were  realty,  and  that  therefore  she 
had  but  a  dower  estate.  The  question  was  very  fully  discussed  and 
was  decided  (says  Professor  Greenleaf  in  his  edition  of  Cruise), 
"  upon  great  consideration." 

For  the  heirs  it  was  urged  that  these  shares  were  real  estate; 
because,  it  was  said,  "  the  estates  were  real  in  the  corporations;  and 
that  if  the  estates  in  the  corporations  were  real,  the  estates  of  the 
individual  members  in  them  followed  their  nature,  and  were  real; 
and  that  the  frequent  declaration  of  the  Legislature  declaring  such 
shares  personal  estates,  at  least  show  a  doubt,  that  when  one  has  a 
right  to  receive  rent,  he  has  only  a  right  to  receive  a  sum  of  money, 
yet  it  does  not  follow  that  his  estate  is  not  real  estate  out  of  which 
his  rent  issues." 

For  the  widow  it  was  argued  that  the  shares  were  personalty, 
because  the  estate  (in  the  bridges,  canals,  towing-paths,  wharves, 
and  lands),  "  can  only  exist  in  the  corporation,  which  alone  can 
acquire  it,  alone  be  seized  or  possessed  of  it,  alone  pass  it  away, 
manage  or  repair  it,  and  so  must  hold  it  entire;  and  that  the  cor- 
poration is  a  moral  person  to  all  the  purposes  of  property.  Its 
tenure  is  to  their  successors,  or  to  their  successors  and  assigns. 
The  estates  can  never  vest  in,  or  be  divided  among  the  individual 
members,  to  hold  as  tenants  in  common,  etc.,  in  their  private  capaci- 
ties. Only  the  corporation  can  possess  the  estate,  and  that  only  by 
j)  »ssessing  the  charter;  and  only  the  corporation  can  be  taxed  for  it 
on  common-law  principles;  and  on  these  can  it  alone  be  taken  in 
execution  for  the  debts  of  the  corporation." 

"  That  the  share  is  personal  estate  though  the  corporation  hold 
real  estate;  for  the  individual  member  has  no  estate,  but  only  a  right 
to  such  dividends  as  the  corporation  from  time  to  time  assigns  to 
him.  He  is  unknown  in  the  grants  made  to  it,  and  he  cannot  grant 
any  part  of  the  estate;  nor  can  he  be  taxed  for  it  but  by  statute 
law;  nor  can  any  private  member  of  a  corporation  be  distrained  for 
a  public,  concern  of  it;  his  only  remedy  for  his  dividend  is  case  in 
impsit,  or  an  action  on  the  case  for  a  wrongful  refusal  or  neglect 
to  pay  or  allow  him  his  part  of  the  profits." 


I.  3.]  PERSONAL    INTERESTS:    CORPORATE    STOCK.  \J 

The  judgment  of  the  court  was,  as  I  have  stated,  that  the  shares 
were  personal  estate.  "  The  principal  reason  of  the  decision,"  says 
Dane,  "appears  to  be,  because  the  court  considered  that  the  indi- 
vidual member,  or  shareholder,  had  only  a  right  of  action  for  a  sum 
of  money,  his  part  of  the  net  profits  or  dividends.  And  so  the  law 
has  been  held  to  be  since  this  decision  was  made." 

In  his  edition  of  Cruise,  Greenleaf  says:  "  Shares  in  the  property 
of  a  corporation  are  real  or  personal  property,  according  to  the 
nature,  object  and  manner  of  the  investment.  Where  the  corporate 
powers  are  to  be  exercised  solely  in  land,  as  where  original  authority 
is  given  by  the  charter  to  remove  obstructions  in  a  river  and  render 
it  navigable,  to  open  new  channels,  etc.,  to  make  a  canal,  erect 
water-works,  and  the  like,  as  was  the  case  of  the  New  River  water, 
the  navigation  of  the  river  Avon  and  some  others,  and  the  property 
or  interest  in  the  land,  though  it  be  an  incorporeal  hereditament,  is 
vested  inalienably  in  the  corporators  themselves,  the  shares  are 
deemed  real  estate.  Such,  in  some  of  the  United  States,  has  been 
considered  the  nature  of  shares  in  toll-bridge,  canal  and  turnpike 
corporations  by  the  common  law;  though  latterly  it  has  been  thought 
that  railway  shares  were  more  properly  to  be  regarded  as  personal 
estate.  But  where  the  property  originally  entrusted  is  money,  to 
be  made  profitable  to  the  contributors  by  applying  it  to  certain  pur- 
poses, in  the  course  of  which  it  may  be  invested  in  lands  or  in  per- 
sonal property,  and  changed  at  pleasure,  the  capital  fund  is  vested 
in  the  corporation,  and  the  shares  in  the  stock  are  deemed  personal 
property,  and  as  such  are  in  all  respects  treated;  in  modern  practice, 
however,  shares  in  corporate  stock,  of  whatever  nature,  are  usually 
declared  by  statute  to  be  personal  estate."     1  Greenleaf 's  Cr.  Dig. 

39,  4°- 

In  support  of  this  statement,  Mr.  Greenleaf  cites  the  cases  we 
have  already  noticed,  and  some  others  that  require  consideration. 
One  of  the  most  important  of  these  is  Blight  v.  Brent,  2  Y.  &  C. 
Exch.  Rep.  268,  294.  It  involved  the  question  whether  the  shares 
in  the  Chelsea  Water-works  Company  were  realty,  or  personalty. 
The  act  of  incorporation  left  the  question  open,  as  it  contained  no 
declaration  upon  the  subject.  The  court  reviewed  the  cases  bear- 
ing upon  it,  and  came  to  the  conclusion  that  the  shares  were  per- 
sonalty. [The  eases  of  Bradley  v.  Holdsworth  3  M.  &  W.  422,  and 
Duncuftv.  Albrecht,  12  S.  &  S.  189,  are  next  considered.} 

A  careful  examination  of  the  adjudications  upon  the  subject  has 
brought  us  to  the  conclusion  that,  according  to  the  weight  of 
authority,  the  shares  in  question  are  personal  property.  In  the 
early  English  cases  the  distinction,  now  well  understood,  between 

LAW  OF  PROP.   IN  LAND  —  2 


1 8  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

the  property  of  a  corporation  and  the  rights  of  its  members,  does 
not  seem  to  have  been  taken,  and  it  appears  to  have  been  assumed 
that  each  shareholder  had  an  estate  in  the  corporate  property,  and 
that,  consequently,  if  that  property  was  real,  his  share  was  also 
realty.  But  the  cases  we  have  cited  abundantly  show  that  the  dis- 
tinction above  mentioned  is  now  fully  recognized  in  England,  and 
that  the  property  of  a  corporation  may  be  mainly,  if  not  wholly, 
real,  and  yet  the  shares  of  its  members  be  personalty.  This  may, 
possibly,  be  an  innovation  upon  the  ancient  principles  of  the  com- 
mon law,  but  it  is  not  more  so  than  has  taken  place  in  the  case  of 
ordinary  partnerships.  Thus,  the  old  doctrine  seems  to  have  been 
that  there  could  be  no  partnership,  properly  so  called,  in  land,  but 
the  contrary  doctrine  is  now  universally  held;  and  that  a  widow  of 
a  deceased  partner  is  not  dowable  in  lands  which  the  firm  owned  and 
regarded  as  partnership  stock,  is  settled  by  numerous  decisions, 
among  which  are  the  cases  in  i  Ohio  Rep.  535,  and  8  Ohio  Rep.  328. 
As  to  the  Connecticut  case,  Welles  v.  Cowles,  there  is,  possibly,  no 
necessary  conflict  between  it  and  the  view  we  take  of  the  present 
case.  There  the  right  to  tolls  may  be  said  to  have  arisen  wholly 
out  of  realty,  the  turnpike  road;  but  in  the  case  at  bar,  the  profits 
of  the  company  accrue  from  real  and  personal  property,  and  per- 
sonal services.  The  turnpike  company  did  not  carry  either  goods 
or  persons.  It  furnished  no  vehicles  for  the  transportation  of  either, 
and  had  no  care  of,  or  responsibility  for,  either.  It  merely  allowed 
a  transit  over  its  road  upon  the  payment  of  a  toll.  But  a  railway 
company  is  a  common  carrier.  It  furnishes  not  simply  a  road,  but 
also  the  conveyances  that  pass  over  it;  it  undertakes  the  transporta- 
tion of  passengers  and  freight,  and  incurs  the  responsibility  of  a 
common  carrier  as  to  both. 

It  was,  therefore,  justly  said  by  Parke,  B.,  in  the  quotation  before 
given,  that  the  interest  of  each  individual  shareholder  is  a  share  of 
the  net  produce  of  both  real  and  personal  property  (and  he  might 
have  added,  of  personal  services),  when  brought  into  one  fund. 
But  we  would  not  be  understood  as  approving  the  decision  in  Welles 
v.  Cowles,  for  we  are  of  opinion  the  shares  in  an  incorporated  turn- 
pike company  as  well  as  in  a  railway  corporation,  are  personal 
property.  The  same  distinction  we  have  drawn  between  a  turnpike 
and  railroad  <  ompany  may  be  drawn  between  the  latter  and  the 
Avon  navigation  case,  and  the  cases  of  tolls  upon  fairs  and  markets, 
and  rents  issuing  out  of  realty.  And  this  distinction  seems  to  be 
n  by  Greenleaf  in  the  quotation  hereinbefore  made.  As  to  the 
case  in  4  Watts,  it  is  enough  to  say  that  it  does  not  appear  that  the 
bridge  builders  were  a  corporation,  or  that  they  intended  to  convert 


I.  3.J  PERSONAL   INTERESTS:    CORPORATE    STOCK.  19 

the  bridge  and  right  of  taking  tolls  into  a  stock.  The  decision  in 
6  Dana,  107,  is  certainly  directly  opposed  to  our  views.  The  court, 
in  that  case,  seems  to  have  wholly  overlooked  the  distinction  between 
the  right  of  the  company  and  the  right  of  the  shareholder,  and  to 
have  concluded  that  if  the  company's  franchise  of  taking  toll  was  an 
incorporeal  hereditament,  springing  even  in  part  from  the  realty,  the 
shareholder's  interest  could  not  be  personalty.  Indeed,  the  court 
call  the  shareholder's  right  a  franchise.  Now,  I  imagine  that  it  is 
the  artificial  being,  the  corporation,  and  not  the  individual  share- 
holder, that  has  the  franchise,  and  possibly  it  is  not  immaterial 
whether  the  toll  arises  wholly  out  of  realty,  or  partly  out  of  realty 
and  partly  out  of  personalty.  "An  annuity,"  says  the  court, 
"  though  only  chargeable  upon  the  person  of  the  grantor,  is  an 
incorporeal  hereditament,  and  though  the  owner's  security  is  merely 
personal,  yet  he  may  have  a  real  estate  in  it,"  citing  2  Bla.  Comm. 
40.  True,  such  an  annuity  is  realty  so  far  as  descent  is  concerned, 
or,  more  properly  speaking,  though  personal  in  itself,  it  descends  as 
if  it  were  realty,  the  reason  of  which  is  that  it  is  limited  by  the 
grant  to  the  heir,  otherwise,  it  would  not  be  a  hereditament.  The 
authorities,  cited  by  the  defendant,  show  conclusively  that  it  is  only 
as  regards  descent  that  it  is  considered  as  realty.  But  unless  there 
is  some  provision  in  the  charter  of  the  Lexington  and  Ohio  R.  R. 
Co.,  limiting  the  stock  to  the  heirs  of  the  stockholder,  the  illustra- 
tion put  by  the  court  is  not  in  point. 

It  must  be  admitted,  however,  that  the  definition  of  Lord  Coke, 
cited  with  approbation  in  Buckeridge  v.  Ingram,  sustains  the  position 
that  the  franchise  was  a  tenement  savoring  of  the  realty;  for,  in 
the  language  of  Coke,  it  was  "  exercisable  within  lands."  And,  as 
before  stated,  we  prefer  to  place  our  decision  upon  the  distinction 
between  the  estate  of  the  corporation  and  the  individual  rights  of 
its  members,  rather  than  upon  a  distinction  between  the  cases  in 
which  the  profit  arises  wholly  out  of  realty,  and  those  in  which  it 
springs  partly  from  realty  and  partly  from  personalty,  though  this 
latter  distinction  seems  to  receive  much  support  from  both  reason 
and  authority.  [T/ie  court  next  shows  that  the  general  policy  of  the 
Legislature  is  in  favor  of  the  view  which  holds  such  shares  personal}. 

The  act  regulating  dower  provides:  "  That  the  widow  of  any 
person  dying  shall  be  endowed  of  one  full  and  equal  third  part  of 
lands,  tenements  and  real  estate  of  which  her  husband  was  seized, 
as  an  estate  of  inheritance,  at  any  time  during  the  coverture." 
Swan's  Stat.  296.  It  follows,  that  if  turnpike  and  railroad  shares 
are  real  estate,  every  widow  whose  husband  was,  at  any  time  during 
the  coverture,  the  owner  of  such  shares,  is  entitled  to  dower  therein, 


20  REAL  AND  PERSONAL  PROPERTY.  [PT.  I.  CH.  II. 

although  he  may  have  sold  or  transferred  the  same;  unless  the 
transfer  was  by  deed  of  the  husband  and  wife,  duly  executed, 
attested  and  acknowledged.  We  cannot  imagine  that  the  Legisla- 
ture ever  intended  any  such  thing.     *     *     * 

In  whatever  way  we  view  the  case,  whether  upon  adjudication, 
reason  or  our  statute  laws,  we  arrive  at  the  conclusion  that  the 
shares  in  question  are  personal  property.  The  bill  must  therefore 
be  dismissed. 

Bill  dismissed. 


4.  Land  Treated  as  Money  by  "Equitable  Conversion." 

CRAIG  v.  LESLIE. 

3  Wheaton  (U.  S.),  563.  —  1S1S. 

[Reported  herein  at  p.  71.] 


II.  Leading  differences  in  the   law   as  between   real   and  personal 
property. 

1.  In    the    "Law    of    Succession"    to  Estates  of    Deceased 

Persons. 

OVERTURF  v.   DUGAN. 

29  Ohio  State,  230.  —  1876. 

Petition  in  the  Court  of  Common  Pleas  to  compel  the  widow 
and  heirs-at-law  of  Thomas  Dugan,  deceased,  to  pay  to  Overturf, 
as  administrator,  rents  accrued  since  Dugan's  death;  also  to  enjoin 
them  from  collecting  any  further  rents,  and  the  tenants  from  paying 
such  rents  to  them.  Decree  in  favor  of  the  petitioner.  On  appeal  to 
the  District  Court  such  decree  was  reversed  and  the  injunctions 
were  dissolved.  The  administrator  now  moves  for  leave  to  file 
petition  in  error. 

GlLMORE,  J.  —  There  is  no  controversy  as  to  the  facts  in  the  case; 
they  are  admitted  to  be  as  stated  in  the  pleadings. 

The  intestate  having  died  in  the  month  of  November,  1873,  there 
is  no  question  made  as  to  the  right  of  the  administrator  to  take,  as 
I  .  the  emblements  or  crops  growing  upon  the  lands  for  the  then 
(  urrenl  year,  viz.,  from  March  1,  1873,  to  March  1,  1874. 


II.   i.]  DIFFERENCES   IN   THE    LAW   OF   SUCCESSION.  21 

But  the  real  estate  of  the  intestate  not  having  been  sold,  the  con- 
troversy relates  to  the  accruing  rents  for  the  succeeding  year,  i.  e., 
from  March  i,  1874,  to  March  1,  1875. 

On  the  part  of  the  administrator,  it  is  claimed  that  on  the  admitted 
facts  in  the  case,  he,  as  trustee  for  the  creditors,  is  entitled  to  these 
rents.  On  the  other  hand,  the  heirs  claim  that,  being  the  owners 
and  in  possession  of  the  lands,  they  are  entitled  to  these  rents  in 
their  own  right,  subject  to  the  widow's  interest  therein. 

Upon  the  facts  admitted,  which  of  these  respective  claims  will 
the  law  recognize  as  valid? 

1.  By  an  unbroken  line  of  decisions  in  our  State  it  is  conclusively 
settled:  That  the  real  estate  of  an  intestate  descends  at  once  to 
his  legal  heirs;  and  the  legal  title  is  vested  in  them,  subject  only  to 
the  right  of  the  administrator  to  sell  the  same  for  the  payment  of 
the  debts,  in  the  manner  prescribed  by  law. 

From  this  it  is  at  once  apparent  that  the  administrator  of  an  intes- 
tate has  no  interest  whatever  in  the  lands  of  which  his  intestate  died 
seized,  except  the  right  of  sale  for  the  purpose  specified.  Not  hav- 
ing the  title,  he  cannot,  in  the  absence  of  statutory  authority,  take 
possession  of  the  lands,  and  no  such  authority  is  given  to  him.  The 
only  power  over  the  lands  with  which  he  is  clothed  is  a  power  to 
sell  the  same  to  pay  the  debts  of  his  intestate,  and  this  power  can 
only  be  exercised  and  executed  under  the  sanction  of  a  court  of 
competent  jurisdiction,  in  pursuance  of  statutory  authority,  and  a 
sale  of  his  intestate's  lands,  made  without  such  sanction,  would  be 
void.  The  special  case  provided  for  by  the  120th  section  of  the 
administration  law  (S.  &  C.  590)  forms  no  exception  to  the  general 
rule,  for  there  the  intestate  having  transferred  his  land  to  defraud 
his  creditors,  the  title  could  not  descend  to  his  heirs.  It  is  the  pro- 
ceeds of  the  sale  of  the  land  alone,  and  not  the  land  itself,  that  the 
administrator  can  take  as  against  the  heirs  to  whom  the  land 
descended. 

2.  The  title  to  the  real  estate,  which  the  heir  takes  by  descent, 
entitles  him  to  the  possession  of  his  ancestor;  and  this  draws  to  it 
the  right  to  receive,  as  against  the  administrator,  the  rents  and 
profits  of  the  land  (emblements  excepted)  during  the  continuance 
of  his  possession,  which  may  be  from  the  death  of  the  ancestor  until 
the  actual  sale  of  the  land  by  the  administrator  for  the  payment  of 
the  debts  of  his  intestate. 

The  above  propositions  are  perfectly  consistent  with  the  decisions 
of  this  court  in  reference  to  the  debts  of  the  intestate  being  a 
charge  or  lien  on  the  land;  and  that  this  charge  or  lien  is  paramount 
to  the  rights  of  the  heir-at-law,  and  that  it  can  only  be  removed  by 


22  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

the  payment  of  the  debts,  or  by  the  lapse  of  time.  Stiver  v.  Stiver, 
8  Ohio,  221;  Ramsdallv.  Craighill,  9  Ohio,  197;  Shelden  v.  Newton, 
3  Ohio  St.  504. 

This  charge  or  lien  is  a  legal  incident  to  the  ownership  of  the 
intestate,  and  operates  in  favor  of  his  creditors  and  for  their 
security.  The  administrator  has  no  power  over  this  lien  or  charge; 
he  cannot  by  his  individual  act  either  release  the  land  from  it,  in 
favor  of  the  heir,  or  enlarge  its  operations  in  favor  of  the  creditors 
of  the  estate.  As  has  been  said,  he  can  only  obtain  the  proceeds  of 
the  land  by  an  unauthorized  sale. 

Neither  the  filing  of  the  petition  to  sell  the  lands,  before  the  rents 
in  question  commenced  accruing;  nor  the  order  of  sale  granted  by 
the  court  shortly  after  they  began  to  accrue;  nor  the  declaring  of 
the  estate  probably  insolvent  by  the  proper  court,  had  the  effect  of 
enlarging  the  rights  of  the  administrator  in  reference  to  the  accruing 
rents.  The  heirs  were  still  legally  in  possession  as  owners  of  the 
land,  and  entitled  to  the  rents;  and  as  has  been  said,  the  lien  in 
favor  of  the  creditors  was  upon  the  land  itself,  and  not  upon  the 
rents  accruing  during  the  time  intervening  between  the  death  of  the 
intestate  and  the  sale  by  the  administrator.  Rents  thus  accruing 
are  not  and  cannot  be  said  to  be  assets  belonging  to  the  administra- 
tor of  the  intestate's  estate,  for  they  were  not  in  existence  at  his 
death,  and  the  creditors  of  the  intestate  cannot  claim  them  for  the 
payment  of  his  debts,  for  they  never  belonged  to  him.  They  there- 
fore must  belong  to  the  owners  of  the  land  who  are  the  widow  and 
heirs. 

The  fact  that  an  administrator  may  be  ordered  by  the  court  to 
include  in  the  inventory  and  appraisement,  the  real  estate  of  the 
intestate,  as  provided  in  sections  3  and  29  of  the  administration  act 
(S.  &  C.  567,  572),  does  not  affect  the  question.  The  object  of  this 
legislation  was  not  to  enlarge  the  powers  of  the  administrator  over 
the  real  estate,  but  to  put  the  court  in  possession  of  the  informa- 
tion, with  a  view  of  enabling  it  to  more  intelligently  discharge  its 
duties  in  supervising  the  conduct  of  the  administrator. 

Sections  57  and  113  of  the  act  (S.  &  C.  576,  587)  require  the 
administrator  to  account  for  after-acquired  assets;  but  the  rents  of 
the  real  estate  that  descended  to  the  heirs,  accruing  after  the  descent 
was  cast,  not  being  assets  of  the  estate,  these  sections  impose  no 
duties  upon  the  administrator  in  reference  to  them. 

The  lands  in  question  were  all  incumbered  by  mortgages  executed 
by  the  intestate,  the  conditions  of  which  respectively  were  broken 
.it  Mi-  time  of  Ins  death.  None  of  the  mortgagees  had  commenced 
proceedings  in   foreclosure,  or  asked  the  appointment  of  a  receiver 


II.  2.]        THE  LAW  OF  DOWER  AND  CURTESY.  23 

to  take  charge  of  the  lands  and  rents.     Other  debts  to  large  amounts 
are  unsecured. 

The  plaintiff  in  error  claims  that:  "  Upon  general  equity  princi- 
ples an  administrator  who  stands  as  trustee  for  creditors  may  come 
into  court  for  instructions  without  reference  to  the  statute,  and 
from  his  showing,  if  it  appears  that  the  estate  is  insolvent,  and  that 
the  naked  land  with  the  other  assets  will  not  pay  the  debts,  the 
accruing  rents  can  be  appropriated  for  this  purpose." 

There  are  no  authorities  cited  in  support  of  this  proposition. 
While  it  may  be  conceded  that  the  mortgagees,  or  any  of  them,  might 
go  into  a  court  of  equity  and  assert  their  rights  under  their  mort- 
gages, after  condition  broken,  and  have  a  receiver  appointed  to  take 
charge  of  the  lands  and  collect  accruing  rents  for  their  benefit,  yet 
the  right  to  this  relief  would  rest  upon  the  fact  that  they  were  the 
owners  of  the  legal  title,  but  not  having  the  right  to  the  possession 
under  our  present  practice,  equity  would  give  them  that  which  is 
usually  an  incident  to  possession  —  that  is,  the  rents  and  profits  until 
foreclosure  and  sale.  But  general  creditors  would  have  no  such 
equitable  right  by  reason  of  the  fact  that  their  debts  are  a  charge 
or  lien  upon  the  lands  of  the  intestate  in  the  hands  of  the  heirs. 
They  cannot  proceed  directly  against  the  lands.  Their  rights  must 
be  wrought  out  through  the  administrator,  and,  as  we  have  seen,  his 
rights,  powers,  and  duties  are  all  strictly  statutory,  and  no  statute 
exists  giving  the  administrator  a  right  to  go  into  a  court  of  equity 
and  compel  the  heirs  to  give  up  rents  that  legally  belong  to  them, 
for  the  benefit  of  the  creditors  of  their  ancestor. 

Motion  overruled. 


WEBSTER  v.  PARKER. 
42  Mississippi,  465.  —  1869. 
[Reported  herein  at  p.  42.]  ' 

2.  In  the  Law  of  Dower  and  Curtesy. 
GOODWIN  v.  GOODWIN. 

33  Connecticut,  314.  —  1886. 
[Reported  herein  at  p.  8.] 


'See   also  abstract  of  case  of  Murdoch  v.  Ratcliff,  7   Ohio,    119,  in  Northern 
Bank  of  Kentucky  v.  Roosa,  at  p.  12,  supra.  —  Ed. 


24  REAL   AND    PERSONAL    PROPERTY.      [PT.  I.  CH.  II. 

HOUGHTON  v.  HAPGOOD. 
13  Pickering,  (Mass.),  J54. —  1832. 

Appeal  from  a  decree  of  the  judge  of  probate  ordering  distribu- 
tion of  the  balance  in  the  hands  of  Hapgood  as  executor  of  the  will 
of  Jonathan  Grout. 

The  following  clause  is  contained  in  the  will:  —  "  The  rest  and 
residue  of  my  estate  I  give,  after  paying  my  debts,  to  my  daughters 
Sarah  Brooks,  Betsey  Hapgood,  Lydia  Houghton,  Dolly  Hapgood, 
and  Sukey  Grout,  always  providing  that  if  this  residue  shall  exceed 
one  thousand  dollars  in  value  to  each  daughter,  then  the  overplus 
shall  be  divided  among  all  my  children,  after  first  taking  from  such 
overplus  enough  to  clear  the  homestead  farm  for  John,  if  not  other- 
wise done." 

The  executor  represented  the  estate  as  insolvent  and  took  proper 
steps  to  have  the  real  estate  sold  to  pay  the  debts,  but  as  a  result  of 
the  sales  he  obtained  title  to  it  himself  personally.  The  estate  was 
not  in  fact  insolvent,  and  a  considerable  sum,  the  proceeds  of  the 
real  estate  sales,  remains  to  be  divided. 

Lydia  Houghton  died  some  time  after  her  father's  decease,  leav- 
ing, her  surviving,  her  husband,  the  appellant,  and  two  children. 
Further  facts  appear  in  the  opinion. 

Wilde,  J.,  delivered  the  opinion  of  the  court.  The  questions 
arising  upon  this  appeal  depend  upon  the  construction  of  a  clause  in 
the  last  will  and  testament  of  the  late  Jonathan  Grout,  which  is 
deemed  doubtful,  and  upon  the  proceedings  of  the  executor  in 
administering  the  estate,  which  for  many  years  past  have  proved 
such  a  never-failing  fountain  of  controversy  in  the  courts  of  this 
commonwealth,  and  in  those  of  an  adjoining  State,  where  a  con- 
siderable portion  of  the  estate  of  the  testator  was  situate. 

Upon  the  facts  in  the  case  the  counsel  for  the  appellant  has 
endeavored  to  maintain  two  positions:  —  1.  That  the  residuary 
clause,  at  least  to  the  extent  of  $1,000,  is  to  be  construed  as  a 
pecuniary  legacy,  and  so  vested  in  the  appellant.  2.  If  it  is  not  so 
construed,  but  is  considered  as  a  residuary  devise  of  real  estate, 
then  that  the  land  devised  was  converted  into  money,  with  the  con- 
sent of  Lydia  Houghton,  and  that  it  thereupon  vested  in  her  hus- 
band, t  he  appellant. 

Neither  of  these  positions  can,  we  think,  be  maintained. 

The  testator's  property  consisted  principally  of  real  estate,  the 
personal  estate  being  insufficient  to  pay  his  debts.  The  residuary 
clause,  therefore,  is  in  express  language  a  disposition  and  devise  of 


II.  2.]  THE    LAW   OF   DOWER   AND   CURTESY.  25 

real  estate,  and  there  is  nothing  to  indicate  an  intention  of  giving  a 
pecuniary  legacy. 

It  has  been  said,  that  if  the  lands  had  not  been  sold,  it  would  be 
difficult,  if  not  impossible,  to  execute  the  will,  construing  the  resi- 
duary clause  as  a  devise  of  lands;  but  we  can  perceive  no  impossi- 
bility, nor,  indeed,  the  slightest  difficulty  in  making  a  distribution 
of  the  property  according  to  the  terms  of  the  will.  The  lands 
might  be  appraised,  and  if  the  appraised  value  should  not  exceed 
the  sum  of  $5,000,  or  $1,000  to  each  daughter,  then  the  whole  would 
vest  in  them  in  equal  shares.  If  the  value  should  exceed  that 
amount,  then  so  much  of  the  land  as  would  be  of  that  value  might 
be  set  off  to  them,  leaving  the  residue  to  be  divided  among  all  the 
children. 

As  to  the  second  question,  whether  Lydia  Houghton  assented  to 
the  sales  made  by  the  executor  —  The  evidence  appears  to  us  not 
satisfactory.  Courts  should  be  slow  to  sanction  the  assent  of  a  wife 
to  the  conversion  of  real  estate  into  money,  without  convincing 
proof  that  she  assented  understandingly,  and  with  a  full  knowledge 
of  the  legal  effect  of  such  a  conversion  upon  her  rights  and  interests, 
and  without  any  undue  influence  on  the  part  of  her  husband.  The 
loose  conversations  of  the  wife,  such  as  are  proved  by  the  deposition 
of  Polly  G.  Brooks  and  George  A.  Houghton,  unsupported  as  they 
are  by  any  circumstance  to  show  that  she  understood  the  legal  effect 
of  such  a  change,  and  did  not  act  under  the  influence  of  her  husband, 
ought  not,  we  think,  to  be  binding  upon  her  or  her  heirs.  Upon 
her  death,  therefore,  her  share  of  the  real  estate  descended  to  her 
heirs,  the  sales  of  the  executor  being  void.  But  the  heirs  have  since 
elected  to  confirm  the  sales,  as  they  had  a  right  to  do,  and  are, 
therefore,  entitled  to  an  equivalent  in  their  distributive  shares  of 
the  fund  produced  by  the  sales. 

They  are,  howrever,  not  entitled  to  the  whole  share  belonging  to 
Lydia  Houghton.  The  husband,  during  the  life  of  his  wife,  was 
entitled  to  the  profits  and  income  of  her  real  estate;  and  he  con- 
tinues entitled  to  receive  the  same  as  tenant  by  the  curtesy.  The 
interest  of  the  money  for  which  the  lands  sold,  consequently,  belongs 
to  him,  he  relinquishing  his  claim  to  the  lands.  We  are  aware  that 
this  may  probably  exceed  the  profits  or  income  of  the  estates  sold, 
and  so  probably  the  amount  of  sales  exceed  the  present  value  of  the 
estates  sold.  But  to  these  advantages,  if  any  there  be,  the  parties 
are  respectively  entitled.  The  appellant's  distributive  share  will, 
upon  these  principles,  be  the  amount  of  the  past  interest,  and  the 
present  value  of  his  life-right  in  the  future  interest  or  income  of  his 
deceased  wife's  share  of  the  fund  arising  from  the  sales. 


26  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.   CH.  II. 

The  expectation  of  life  is  to  be  determined  by  Dr.  Wigglesworth's 
Table  of  Mortality,  and  the  value  of  the  life-right  may  be  ascertained 
by  computation,  or  by  Dr.  Bovvditch's  life-annuity  tables. 

The  decree  of  the  judges  of  probate  is  to  be  reversed,  and  a  new 
decree  entered  up  in  conformity  to  these  principles,  and  the  papers 
are  to  be  remitted  to  the  Probate  Court  for  further  proceedings. 


3.  In    Husband's    Common-Law    Right    to    Wife's    Real  and 
Personal  Property. 

HOUGHTON  v.  HAPGOOD. 

13  Pickering  (Mass.),  154.  — 1832. 
[Reported  herein  at  p.  24.] 


RILEY'S  ADMINISTRATOR  v.  RILEY. 
19  New  Jersey  Equity,  229.  —  1868. 

The  Chancellor. — The  complainant,  as  administrator  of  the 
estate  of  Ann  Riley,  calls  upon  the  defendant  to  account  for  the 
rents  of  certain  leasehold  property  in  Jersey  City,  held  by  Ann  Riley 
at  her  death,  and  which  the  defendant  has  received;  he  claims  to 
have  received  them  in  his  own  right,  and  that  they  are  legally  his 
own,  by  a  bequest  in  the  will  of  Miles  Riley,  the  husband  of  Ann. 
Ann  Riley  became  entitled  to  the  leasehold  estate  by  the  will  of  her 
former  husband,  James  Cummings,  who  bequeathed  to  her  one-third 
of  it,  and  a  right  of  support  out  of  the  other  two-thirds.  After 
Cummings'  death,  she  was  married  to  Miles  Riley,  who  died  in  her 
lifetime,  without  having  in  any  way  aliened  or  disposed  of  the  lease- 
hold estate,  but  by  his  will  gave  it  to  his  brother  Owen  Riley,  the 
defendant. 

The  defendant  claims  that  Miles  Riley  in  his  lifetime  had  erected 
buildings  upon  this  property,  and  collected  the  rents,  and  by  this  he 
had  shown  his  intention  to  appropriate  this  leasehold,  which,  as  a 
Chattel  real  of  his  wife,  he  had  a  right  to  reduce  into  possession, 
and  appropriate. 

The  evidence  shows,  that  in  the  life  of  Miles  Riley  and  after  his 
marriage  with  Ann  ( lummings,  buildings  were  erected  on  the  premises, 
but  the  'Par  weight  of  evidence  is  that  they  were  erected  by  his 
wife,  and  paid  for  out  of  the  rents  of  the  whole  premises,  which  the 


ii.  3-J  husband's  right  to  wife's  property.  27 

executors  of  Cummings  permitted  her  to  receive  and  collect  for  that 
purpose.  Miles  Riley  appears  to  have  aided  by  performing  some 
work  in  the  erection  of  the  buildings,  and  to  have  contributed  a  few 
dollars  towards  the  erection. 

The  only  question  that  arises  is,  whether  these  leasehold  premises 
were  disposed  of,  or  appropriated  by  Miles  Riley  in  his  life,  so  as  to 
vest  the  property  in  him,  and  take  away  the  right  of  his  wife  after 
his  death.  Miles  Riley  died  in  1848,  and  this  question  must  be 
decided  by  the  law  as  it  stood  then.  By  that  law,  the  personal  prop- 
erty of  a  woman,  upon  her  marriage,  vested  in  her  husband;  her 
goods  and  chattels  absolutely;  he  had  the  right  to  the  possession  of 
her  choses  in  action,  and  of  her  chattels  real,  and  could  at  any  time 
dispose  of,  collect,  or  sell  them,  and  by  this  the  proceeds  of  them 
became  his  absolutely;  but  if  he  did  not  reduce  them  to  possession 
by  disposing  of  them,  or  some  equivalent  act,  they  survived  to  her, 
and  would  not  pass  by  his  will,  which  did  not  take  effect  until  his 
death,  when  the  title  had  become  vested  in  her  by  the  survivorship. 

Taking  possession,  collecting  rents,  interest,  or  dividends,  has 
never  been  held  to  be  a  disposition  of  the  property,  or  a  reduction 
into  possession,  so  as  to  take  away  the  wife's  right  of  survivorship. 
Nor  has  it  ever  been  held  that  the  erection  of  buildings  by  the  hus- 
band on  the  leasehold  lands  of  the  wife  was  such  disposition  of 
them  as  to  take  away  her  right.  An  actual  disposition  by  sale, 
lease,  or  mortgage,  or  contract  for  such  object,  has  always  been 
required  to  take  away  the  wife's  right  of  survivorship.  A  mort- 
gage or  a  sale  of  part,  or  a  lease  of  part,  or  for  a  less  term,  only  bars 
the  wife  pro  tanto;  her  right  of  survivorship  remains  in  the  equity 
of  redemption,  and  the  residue  of  the  premises  or  term. 

In  this  case  no  interest  in  the  premises  passed  by  the  will  of  Miles 
Riley;  the  whole  survived  to  Ann  Riley,  and  her  administrator  is 
entitled  to  the  fund. 


BABB  v.  PERLEY. 
1  Maine,  6.  —  1820. 


Trespass  on  the  case.  Verdict  for  defendant,  subject  to  the 
opinion  of  the  Court. 

Mellen,  C.  J.  — The  facts  in  this  case  present  some  questions, 
respecting  which  judges  and  counselors  have  taken  different  views. 
They  appear  somewhat  novel  and  we  do  not  find  that  they  have 
received  any  express  judicial  decision.     We  have  examined  the  cause 


28  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.  GIL  II. 

with  much  attention,  and  after  some  vibration  of  opinion  have  at 
length  arrived  at  a  result  with  which  we  are  all  satisfied. 

The  facts  reported  by  the  judge  who  sat  in  the  trial  of  the  cause 
led  the  counsel,  in  the  argument,  to  the  consideration  of  two  ques- 
tions; and  it  may  be  convenient  for  us  to   pursue  the  same  course. 

The  first  inquiry  is,  "  What  were  the  rights  and  liabilities  of  Babb 
in  virtue  of  his  acquiring  a  freehold  estate  in  right  of  his  wife  in  the 
land  in  question,  and  in  consequence  of  his  destroying  or  selling  and 
disposing  of  the  wood  or  timber  growing  on  the  land?  " 

The  second  inquiry,  is,  "  What  are  the  rights  and  liabilities  of 
Perley,  as  assignee  of  said  Babb  and  owner  of  his  former  interest  in 
the  land,  in  virtue  of  his  ownership  and  consequent  upon  his  destroy- 
ing or  selling  and  disposing  of  said  wood  and  timber?  " 

With  respect  to  the  first  question,  it  may  now  be  observed  that 
the  land  on  which  the  trees  were  cut  by  Perley  is  admitted  to  be  a 
wood  lot,  uncultivated,  and  in  a  state  of  nature. 

When  a  man  marries  a  woman  who  is  seized  in  fee  of  lands,  he 
thereby  gains  a  freehold  in  her  right.  He  acquires  a  life  estate. 
It  will  be  an  estate  for  the  life  of  the  wife  only,  (unless  he  be  tenant 
by  the  curtesy)  in  case  he  should  survive  her;  or  an  estate  for  his 
own  life,  in  case  she  should  survive  him;  because  the  law  presumes 
that  the  coverture  will  continue  until  the  death  of  one  of  the  parties. 

"  He  does  not  become,  by  the  marriage,  absolute  proprietor  of 
the  inheritance;  but  as  the  governor  of  the  family,  is  so  far  the 
master  of  it,  as  to  receive  the  profits  of  it  during  her  life."  Co.  Lit. 
351;  2  Bl.  Com.  433;  Barber  v.  Root,  10  Mass.  261.  These  profits, 
this  usufruct  of  the  wife's  lands,  the  husband  may  dispose  of  accord- 
ing to  his  pleasure,  without  or  against  her  consent. 

For  any  injury  to  the  annual  profits,  or  for  taking  away  the  emble- 
ments, the  husband  may  maintain  an  action  against  the  wrongdoer, 
in  his  own  name,  without  joining  the  wife.  But  for  an  injury  to  the 
inheritance,  as  for  cutting  down  the  timber  growing  on  the  wife's 
land,  he  cannot  maintain  such  action  without  joining  the  wife;  for 
the  damages  will  survive  to  her.  3  Lev.  403 ;  Vern.  82 ;  Reeves'  Dom. 
Rel.  130,  133- 

I  hese<  asesmark  the  distinction  between  the  rights  of  the  husband 
and  those  of  the  wife  in  relation  to  the  lands  of  which  they  are 
■I  in  her  right.  If,  then,  the  husband  has  a  right  only  to  the 
usufruct  or  profits  of  his  wife's  lands,  the  question  is,  what  were 
tin-  rights  whii  h  Babb  had  in  the  land  above-mentioned,  and  what 
trol  over  it  ?  Could  this  land  yield  any  profits,  according  to  the 
legal  signification  of  the  term?  Some  light  may  he  thrown  upon 
this  point,  by  considering  the  principles  of  the  decision  in  the  case 


II.  3-J  husband's  right  to  wife's  property.  29 

of  Conner  v.  Shcppard,  15  Mass.  164.  In  this  case  the  court  decided 
that  a  widow  could  not  by  law  be  endowed  of  lands  in  a  wild  and 
uncultivated  state;  and  the  reason  assigned  by  the  court  is,  that 
"of  a  lot  of  wild  land,  unconnected  with  a  cultivated  farm,  there 
are  no  rents  and  profits."  Again,  they  say,  "  In  many  instances 
the  inheritance  would  be  prejudiced  without  any  actual  advantage 
to  the  widow  to  whom  the  dower  might  be  assigned.  For  according 
to  the  principles  of  the  common-law,  her  estate  would  be  forfeited, 
if  she  were  to  cut  down  any  of  the  trees  valuable  as  timber.  It 
would  seem  too,  that  the  mere  change  of  the  property  from  wilder- 
ness to  arable  land,  or  pasture,  might  be  considered  as  waste." 
"  The  very  clearing  of  the  land  would  be  actually,  as  well  as  techni- 
cally, waste  of  the  inheritance." 

In  the  case  of  Sargeant  et  al.  v.  To7une,  10  Mass.  303,  the  court 
determined  that  a  devise  of  wild  and  uncultivated  land  carried  a  fee 
without  any  words  of  inheritance;  because  a  life  estate  would  be  of 
no  use  to  the  devisee.  He  would  not,  even  if  he  could  without  com- 
mitting waste,  undertake  the  cultivation  of  the  land  devised. 

It  would  seem  from  the  authorities  above  cited,  that  the  plaintiff, 
Babb,  prior  to  the  extent  of  Perley's  execution,  had  no  right  to  cut 
down  the  timber  on  his  wife's  land,  or  to  do  those  acts  which,  in 
the  case  of  a  tenant  for  life,  or  years,  would  be  waste.  It  is  true 
Babb  had  the  power  to  do  it:  and  so  he  had  the  power  to  pull  down 
a  house,  had  there  been  one  on  the  land;  or  to  beat  and  wound  his 
wife; — but  not  the  right  to  do  this;  because,  in  the  last  case,  he 
would  be  indictable  for  the  offense:  — and,  we  believe  that  a  Court 
of  Chancery  would  prohibit  a  husband  from  a  wanton  destruction  of 
the  wife's  house  or  property.  The  wife,  in  all  these  cases,  is  desti- 
tute of  the  usual  remedy  by  action  for  damages  against  the  husband 
for  this  or  any  other  injury  to  her  inheritance;  because  a  wife  can 
in  no  case  sue  her  husband.  The  agreement  to  marry,  and  the  con- 
sequent marriage,  amount  to  a  waiver  of  this  right  of  action  against 
each  other.  This  principle  is  founded  on  reasons  of  sound  policy. 
But  it  does  by  no  means  follow  that  because  the  husband  has  the 
power  of  doing  many  acts  prejudicial  to  the  interest  or  inheritance 
of  his  wife  with  impunity,  that  he  can  assign  and  transfer  this  power 
to  a  third  person,  and  give  him  this  privilege  of  impunity.  In  this 
situation  of  parties  policy  does  not  require  that  this  impunity  should 
exist;  and,  therefore,  it  does  not  exist. 

As  to  the  second  question,  we  would  observe  that  whatever  were 
the  rights  and  liabilities  of  Babb  as  husband,  those  of  Perley,  the 
assignee,  seem  to  be  more  denned  and  better  explained  ;  and  if  any 
doubt   remain   as  to  Babb's  rights  before   the    extent  of    Perley's 


30  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

execution,  the  cause  may  be  decided  on  this  second  point  by  the 
application  of  principles  well  settled  and  understood. 

It  is  admitted  that  the  extent  of  Perley's  execution  against  Babb, 
upon  his  estate  in  the  land  in  question,  operated  to  transfer  and 
convey  to  Perley  all  Babb's  interest  or  estate  in  such  land.  It 
certainly  could  not  convey  any  more,  though  it  might  place  the 
estate  in  a  different  situation  in  respect  to  other  persons.  Let  us 
then  suppose  that,  instead  of  this  extent,  Babb  had  by  his  deed  con- 
veyed to  Perley  all  his  right,  title  and  interest  in  and  to  the  land 
belonging  to  his  wife.  The  facts  would  then  present  to  us  no  other 
than  the  common  case  of  the  division  of  a  fee  simple  estate  into  a 
freehold  and  a  reversion.  The  freehold  or  life  estate  would  be  in 
Perley;  and  the  reversion  would  be  in  Babb's  wife;  because  Babb, 
her  husband,  had  not,  and  could  not  have  any  control  over  this 
reversion.  Nothing  short  of  a  deed  signed  by  her  as  well  as  by  him 
could  operate  to  convey  it  to  Perley.  The  extent  has  not  affected, 
in  any  degree,  her  reversionary  interest.  Perley,  then,  being  only 
tenant  for  life  of  the  land  in  virtue  of  the  extent  of  his  execution, 
he  could  not  lawfully  commit  waste.  It  would  be  inconsistent  with 
his  estate. 

The  act  complained  of  is  the  cutting  and  carrying  away  and  selling 
about  forty  cords  of  wood.  Of  course,  it  was  an  act  which  a  tenant 
for  life  has  no  right  to  do;  it  was  not  for  fire  wood  nor  fences;  it 
was  neither  for  building  nor  repairing. 

In  the  case  before  us  Mrs.  Babb,  the  reversioner,  sues  Perley  for 
committing  this  waste  on  her  inheritance.  Her  husband  is  joined 
in  the  action,  not  because  he  has  any  interest;  for  that  has  already 
been  legally  conveyed  to  Perley;  but  because  a.  feme  covert  can 
never  sue  alone,  unless  in  two  or  three  special  cases,  forming 
exceptions  to  the  general  rule.  And  now,  we  may  ask,  why  should 
not  the  action  be  maintained?  If  it  should  be  urged  that  it  will  be 
prejudicial  to  the  rights  of  the  husband's  creditors,  by  depriving 
them  of  the  power  of  converting  the  lands  levied  upon  to  any  profit- 
able  use,  the  answer  is,  the  creditors  of  the  husband  cannot  have  any 
more  control  of  the  wife's  land  than  the  husband  himself  had.  The 
i  reditors  may  avail  themselves  of  the  profits  of  the  wife's  land  in 
satisfaction  of  their  demands  against  the  husband;  but  if  there  are 
no  profits,  it  is  nothing  more  than  the  common  misfortune  of  those 
(  reditors  whose  debtors  are  insolvent. 

The  law  is  consistent  and  just.  It  subjects  the  land  to  the  pay- 
ment of  the  wife's  debts,  and  the  profits,  to  the  payment  of  the  debts 
of  the  husband.  After  mature  deliberation,  we  perceive  no  other 
mode   of   deciding   this  eause   without  changing  the  nature  of  legal 


II.  4.]  MODES   OF   TRANSFER.  31 

estates,  and  disturbing  those  principles  by  which  such  estates  are 
created  and  protected. 

We  are  unanimously  of  opinion  that  the  verdict  must  be  set  aside 
and  a  new  trial  granted. 


MARCH  v.  BERRIER. 

6  Iredell's  Equity  (N.  C),  524.  —  1850. 

\Reported  herein  at  p.  70.] 


4.   In  Modes  of  Transfer. 

AUSTIN  v.  SAWYER. 

9  Cowen  (N.  Y.),  39.  — 1827. 

Curia,  per  Savage,  Ch.  J.  —  From  the  whole  case  the  facts  appear 
to  be  as  follows:  The  plaintiff  Austin,  and  one  Orrin  Wilcox,  were 
in  possession  of  farms  in  Orleans  county,  and  each  had  sowed  a  crop 
of  wheat  on  the  farm  by  him  occupied.  After  sowing,  and  in  Octo- 
ber, 1825,  they  agreed  to  exchange  farms,  each  reserving  his  own 
crop  of  wheat.  On  the  13th  of  October,  1825,  they  executed  quit- 
claim deeds  containing  no  reservations  whatever.  Austin  fenced  the 
wheat,  on  the  farm  he  had  left,  in  the  spring  of  1826.  Wilcox  did 
the  same  as  to  the  wheat  he  had  sowed,  and  at  harvest  time  he  cut 
and  carried  it  away.  Wilcox  did  not  take  possession  of  the  farm 
which  he  had  of  the  plaintiff;  but  some  time  after  contracted  to 
assign  his  interest  in  the  farm  to  the  defendant.  Wilcox  then  stated 
to  the  defendant,  that  the  wheat  was  reserved,  and  belonged  to 
Austin,  the  plaintiff.  Some  time  elapsed  after  this  parol  agreement 
before  the  assignment  was  in  fact  executed.  The  conveyance  to 
Wilcox  was  without  seal,  and  so  was  the  assignment,  which  was  as 
follows:  "In  consideration  of  one  hundred  and  seventy  dollars, 
I  assign  over  all  my  right,  title  and  interest  to  within  contract. 
Orrin  Wilcox."  Wilcox  wished  to  reserve  some  trees  as  well  as  the 
wheat;  but  the  defendant  objected  to  this,  as  he  did  not  wish  to 
have  them  cut.  It  does  not  appear  from  the  case  when  the  assign- 
ment was  executed;  but  the  agreement  by  parol  was  three  or  four 
weeks  before,  when  the  wheat  was  reserved.  The  same  thing  was 
repeated  when  the  writing  was  signed.  The  defendant's  son  testi- 
fied that  he  thought  he  heard  his  father  say  that  the  wheat  was 


32  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

reserved,  and  that  it  was  Austin's.     The  defendant  cut  the  wheat 
and  put  it  in  his  own  barn.     There  were  104  bushels. 

The  parol  evidence  of  the  contract  between  Austin  and  Wilcox, 
and  of  the  reservation  of  the  wheat,  and  also  between  Wilcox  and 
the  defendant,  was  objected  to,  apd  received  subject  to  all  legal 
exceptions. 

From  the  whole  case,  if  properly  before  us,  the  justice  of  it  is 
strongly  with  the  plaintiff.  But  the  plaintiff's  right  of  recovery 
depends  on  the  validity  of  his  reservation  of  the  wheat.  The  defend- 
ant shows  an  absolute  conveyance,  which  is  a  complete  answer  to 
the  action  unless  it  can  be  obviated. 

1.  As  to  the  evidence  of  the  reservation.  The  contract  was  first 
made  by  parol,  reserving  the  wheat;  and  when  the  quit-claim  was 
executed,  the  same  parol  agreement  reserving  the  wheat  was  again 
repeated.  But  there  is  no  direct  evidence  of  a  contract  respecting 
the  wheat,  subsequent  to  that  conveyance. 

'  There  is  no  rule  of  evidence  better  settled,"  says  Chancellor 
Kent,  1  John.  Ch.  Rep.  429,  "  than  that  which  declares  that  parol 
evidence  is  inadmissible  to  contradict  or  substantially  vary  the  legal 
import  of  a  written  agreement.  Such  evidence  is  not  only  contrary 
to  the  statute  of  frauds,  but  to  the  maxims  of  the  common-law." 

The  written  instrument  must  be  considered  as  containing  the  true 
agreement  between  the  parties;  and  as  furnishing  better  evidence 
than  any  which  can  be  supplied  by  parol.  1  Ph.  Ev.  495.  5  Cowen, 
508.  The  testimony  in  the  case  respecting  the  reservation  between 
Austin  and  Wilcox,  relates  to  conversations  antecedent  to,  and  at 
the  time  of  executing  the  quit-claim  conveyance.  That  must,  of 
course,  be  rejected,  and  expunged  from  the  case.  All  that  remains 
relates  to  similar  conversations  between  Wilcox  and  the  defendant, 
and  the  acts  of  the  defendant.  Before  Wilcox  assigned  to  the 
defendant  he  frequently  admitted  that  the  wheat  belonged  to  the 
plaintiff.  Had  he  sold  it  by  parol  to  the  plaintiff,  and  afterwards 
conveyed  it  to  the  defendant,  would  not  the  plaintiff  be  entitled  to 
it,  on  the  ground  that  grain  growing  may  be  sold  by  parol;  and  that 
having  been  sold  by  a  valid  contract,  Wilcox's  assignment  to  the 
defend  int,  being  subsequent  to  the  sale  to  the  plaintiff,  could  con- 
vey to  the  defendant  no  greater  right  than  Wilcox  had. 

In  Whipplev.  Foot,  2  John.  422,  it  was  decided  by  this  court  that 
wheat  growing  is  a  chattel,  ami  may  be  sold  as  such  on  execution. 
The  same  doctrine  was  held  by  this  court  in  Stewart  v.  Doughty,  9 
John.  1  1  j,  where  it  added  that  the  purchaser  became  entitled  to 
right  of  ingress,  etc.,  to  gather  the  crop.  On  this  question  the 
English    cases   smn    to    me'    not   quite  consistent.     In  Poulter  v. 


H.  4-j  MODES   OF   TRANSFER.  33 

Killingbeck,  1  B.  &  P.  398,  Buller,  Justice,  in  speaking  of  a  parol 
transfer  of  half  the  growing  crops,  says,  with  respect  to  the  point 
made  at  the  trial  on  the  statute  of  frauds,  this  agreement  does  not 
relate  to  any  interest  in  the  land,  which  remains  altogether  unaltered 
by  the  arrangement  concerning  the  crops.  In  Crosby  v.  Wadsworth, 
6  East,  611,  Lord  Ellenborough,  speaking  of  a  parol  contract  for 
the  sale  of  a  crop  of  growing  grass,  says,  "  I  think  that  the  agree- 
ment stated,  conferring  as  it  professes  to  do  an  exclusive  right  to 
the  vesture  of  the  land  during  a  limited  time,  and  for  given  pur- 
poses, is  a  contract  or  sale  of  an  interest  in,  or  at  least  an  interest 
concerning  lands."  But,  subsequently,  in  Parker  v.  Staniland,  11 
East,  363,  the  same  learned  judge  held  that  a  parol  contract  for  a 
crop  of  potatoes  in  the  ground  was  valid;  and  the  distinction  he  took 
was,  that  the  one  was  growing,  and  the  other  had  come  to  maturity; 
and  also,  that  the  one  was  not  delivered,  being  not  yet  in  a  fit  state 
for  delivery;  but  the  other  was,  by  the  agreement  itself,  delivered 
as  far  as  they  were  capable  of  delivery. 

The  distinction  taken  by  the  Supreme  Court  of  Errors  in  Con- 
necticut, 3  Day,  484,  is  this:  When  there  is  a  sale  of  property  which 
would  pass  by  a  deed  of  land  as  such,  without  any  other  description, 
if  it  can  be  separated  from  the  freehold,  and  by  the  contract  is  to  be 
separated,  such  contract  is  not  within  the  statute. 

Whatever  may  be  the  rule  of  construction  elsewhere,  we  are  not 
at  liberty  here  to  question  the  validity  of  a  parol  contract  for  the 
sale  of  growing  crops.     Was  there  any  evidence  of  such  a  contract? 

Rejecting  all  that  passed  anterior  to,  and  at  the  time  of  executing 
the  written  contract,  the  proof  is  that  Wilcox,  when  treating  with 
the  defendant  as  to  the  sale  of  the  farm,  declared  the  wheat  to 
belong  to  the  plaintiff.  This  is  sufficient  in  my  judgment  to 
authorize  a  jury  to  presume  a  formal  and  valid  contract  for  the  sale 
of  the  wheat. 

The  title  to  the  wheat,  then,  being  in  the  plaintiff,  it  was  not  in 
the  power  of  Wilcox  to  convey  it  to  the  defendant.  Suppose  Wilcox 
had  leased  this  wheat-field  for  three  years  by  parol,  the  lease  would 
have  been  valid.  Any  absolute  conveyance  by  him,  subsequently, 
could  not  divest  the  rights  of  the  lessee  by  parol.  For  the  same 
reason,  the  assignment  by  Wilcox  to  the  defendant,  though  absolute 
in  its  terms,  conveyed  no  more  than  Wilcox  had  a  right  to  convey. 
The  crop  of  wheat,  therefore,  I  consider  legally  shown  to  be  the  prop- 
erty of  the  plaintiff. 

2.  Could  he,  then,  maintain  this  action?  In  answer  to  this  ques- 
tion, I  say,  in  the  language  of  Lord  Ellenborough,  6  East,  610,  "  As 
the  plaintiff  appears  to  have  been  entitled  to  the  exclusive  enjoy- 

LAW  OF  PROP.   IN  LAND  —  3 


34  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CII.  II. 

ment  of  the  crop  growing  on  the  land,  during  the  proper  period  of 
its  full  growth,  and  until  it  was  cut  and  carried  away,  he  might,  in 
respect  of  such  exclusive  right,  maintain  trespass  against  any  per- 
sons doing  the  acts  complained  of."  He  cites  Co.  Lift.  4  b.,  and  3 
Bur.  1824;  in  the  first  of  which  it  is  laid  down,  that  whoever  hath 
the  vesture  of  the  land,  as  the  crops,  shall  have  an  action  of  trespass 
quare  clan  sum  /regit.  In  the  latter  (the  case  of  Wilson  v.  Mackreth), 
it  was  objected  that  trespass  would  not  lie.  Lord  Mansfield  said 
there  wants  nothing  to  answer  the  objection  but  to  state  the  case, 
which  he  summed  up  thus:  "  The  plaintiff's  right  is  in  a  several 
piece  of  ground,  butted  and  bounded;  a  separate  right  of  property 
to  take  the  profit  of  the  turf,  and  to  dig  it  for  that  purpose.  The 
plaintiff  has  this  right  exclusive  of  all  others,  and  the  defendant  has 
disturbed  him  in  it;  therefore,  trespass  lies  though  he  has  not  the 
absolute  right  to  the  soil."  Mr.  Justice  Yates  said,  whenever  there 
is  an  exclusive  right,  trespass  lies.  In  this  case  there  was  aa 
exclusive  right,  necessarily,  to  the  close,  until  the  harvesting  of  the 
wheat.  And  in  Stewart  v.  Doughty,  9  John.  113,  Kent,  Ch.  Jus- 
tice, says,  "  The  general  language  of  the  authorities  is  to  this 
effect:  That  the  grantee  vesturoz  terra,  or  herbagii terra,  may  main- 
tain trespass,  though  he  has  not  the  soil." 

I  am,  therefore,  of  opinion  that  the  plaintiff  is  entitled  to  judgment. 

Judgment  for  the  plaintiff. 


HIRTH  v.  GRAHAM. 
50  Ohio  State,  57.  —  1893. 


Bradbury,  J.  —  The  plaintiff  in  error  brought  an  action  before  a 
justice  of  the  peace  to  recover  of  the  defendant  in  error  damages 
alleged  to  have  been  sustained  on  account  of  the  refusal  of  the 
latter  to  perform  a  contract  by  which  he  had  sold  to  the  plaintiff  in 
error  certain  growing  timber. 

The  defendant  attempted  to  secure  the  dismissal  of  the  action  on 
the  ground  that  the  justice  had  no  jurisdiction  of  an  action  for  the 
breach  of  such  a  contract.  Failing  in  this,  and  the  action  being 
trii  'I  to  a  jury,  he  requested  the  justice  to  instruct  the  jury  "  that 
if  t hoy  find  from  the  evidence  that  the  trees  about  which  this  action 
is  brought  were  at  the  tunc  <>f  said  alleged  contract  then  growing 
upon  the  land  of  defendant,  and  that  no  note  or  contract  or  memo- 
randum of  the  1  ontra<  I  of  sale  was  at  the  time  made  in  writing,  the 
plaintill  -  annol   maintain  this  action,  and  your  verdict  should  be  for 


II.  4-]  MODES   OF   TRANSFER.  35 

the  defendant;  "  which  instruction  the  justice  refused  to  give,  but 
on  the  contrary  gave  to  them  the  following  instructions  on  the  sub- 
ject: "This  is  an  action  for  damage,  not  on  the  contract  nor  to 
enforce  the  same,  and  if  you  find  that  a  contract  was  made,  verbal 
or  otherwise,  and  the  defendant  refused  or  failed  to  comply  with  its 
terms,  the  plaintiff  is  entitled  to  any  damage  you  may  find  him  to 
have  sustained  by  way  of  such  non-compliance." 

The  defendant  in  error,  who  was  also  the  defendant  in  the  Jus- 
tice's Court,  excepted,  both  to  the  charge  as  given  and  to  the  refusal 
to  charge  as  requested ;  the  verdict  and  judgment  being  against  him, 
he  embodied  the  charge  as  given,  as  well  as  that  refused,  in  separate 
bills  of  exceptions,  and  brought  the  cause  to  the  Court  of  Common 
Pleas  on  error,  where  the  judgment  of  the  justice  of  the  peace  was 
affirmed;  he  thereupon  brought  error  to  the  Circuit  Court,  where 
the  judgment  of  the  Court  of  Common  Pleas  and  that  of  the  justice 
were  both  reversed,  and  it  is  to  reverse  this  judgment  of  the  Circuit 
Court  and  reinstate  and  affirm  those  of  the  Court  of  Common  Pleas 
and  justice  of  the  peace  that  this  proceeding  is  pending. 

Counsel  for  plaintiff  in  error  contends  that  the  record  contains 
nothing  to  show  that  the  trees  which  were  the  subject  of  the  con- 
tract were  standing  or  growing,  and  that,  therefore,  it  does  not 
appear  that  the  defendant  was  injured  by  the  instructions  given  and 
refused.  The  record  does  not  support  this  contention.  During 
the  trial  three  separate  bills  of  exceptions  were  taken,  and  when  all 
of  them  are  considered  together,  it  clearly  appears  that  evidence 
was  given  tending  to  prove  that  the  trees,  the  subject  of  the  con- 
tract, were  growing  on  the  land  at  the  time  it  was  made,  and  that 
the  contract  was  not  evidenced  by  any  note  or  memorandum  in 
writing.  The  instruction  refused  was,  therefore,  pertinent,  and  if 
it  contained  a  sound  legal  proposition  the  refusal  to  give  it  in  charge 
to  the  jury  was  prejudicial  to  the  defendant.  The  court,  however, 
not  only  refused  to  give  the  instructions  requested  by  the  defendant, 
but  told  the  jury  in  substance,  that  no  written  memorandum  was 
necessary.     *     *     * 

Whether  a  sale  of  growing  trees  is  the  sale  of  an  interest  in  or 
concerning  land  has  long  been  a  much  controverted  subject  in  the 
courts  of  England  as  well  as  in  the  courts  of  the  several  States  of 
the  Union.  The  question  has  been  differently  decided  in  different 
jurisdictions  and  by  different  courts,  or  at  different  times  by  the 
same  court  within  the  same  jurisdiction.  The  courts  of  England, 
particularly,  have  varied   widely  in   their  holdings  on  the  subject. 

Lord  Mansfield  held  that  the  sale  of  a  crop  of  growing  turnips  was 
within  this  clause  of  the  statute.     Emmerson  v.  Heelis,  2  Taunt.  38, 


36  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.  CH.  II. 

following  the  case  of  Waddington  et  al.  v.  Bristow  et  a/.,  etc.,  2  Bos. 
&  Pul.  452,  where  the  sale  of  a  crop  of  growing  hops  was  adjudged 
not  to  have  been  a  sale  of  goods  and  chattels  merely.  And  in 
Crosby  v.  Wadsworth,  6  East,  601,  the  sale  of- growing  grass  was  held 
to  be  a  contract  for  the  sale  of  an  interest  in  or  concerning  land, 
Lord  Ellenborough  saying:  "  Upon  the  first  of  these  questions  " 
(whether  this  purchase  of  the  growing  crop  be  a  contract  or  sale  of 
lands,  tenements  or  hereditaments,  or  any  interest  in  or  concerning 
them),  "  I  think  that  the  agreement  stated,  conferring,  as  it  pro- 
fesses to  do,  an  exclusive  right  to  the  vestures  of  the  land  during  a 
limited  time  and  for  given  purposes,  is  a  contract  or  sale  of  an 
interest  in,  or,  at  least,  an  interest  concerning  lands.      Id.  610. 

Afterwards,  in  Teal  v.  Auty,  2  B.  &  B.  99,  the  Court  of  Common 
Pleas  held  a  contract  for  the  sale  of  growing  poles  was  a  sale  of  an 
interest  in  or  concerning  lands.  Many  decisions  have  been 
announced  by  the  English  courts  since  the  cases  above  noted  were 
decided,  the  tendency  of  which  have  been  to  greatly  narrow  the 
application  of  the  fourth  section  of  the  Statute  of  Frauds  to  crops, 
or  timber,  growing  upon  land.  Crops  planted  and  raised  annually 
by  the  hand  of  man  are  practically  withdrawn  from  its  operation, 
while  the  sale  of  other  crops,  and  in  some  instances  growing  timber, 
also,  are  withdrawn  from  the  statute,  where,  in  the  contemplation 
of  the  contracting  parties,  the  subject  of  the  contract  is  to  be  treated 
as  a  chattel.  The  latest  declaration  of  the  English  courts  upon  this 
question  is  that  of  the  common  pleas  division  of  the  high  court  of 
justice,  in  Marshall  v.  Green,  1  C.  P.  Div.  35,  decided  in  1875.  The 
syllabus  reads:  "  A  sale  of  growing  timber  to  be  taken  away  as 
soon  as  possible  by  the  purchaser  is  not  a  contract  or  sale  of  land, 
or  any  interest  therein,  within  the  fourth  section  of  the  Statute  of 
Frauds."  This  decision  was  rendered  by  the  three  justices  who 
constituted  the  common  pleas  division  of  the  high  court  of  justice, 
Coleridge,  C.  J.,  Brett  and  Grove,  JJ.,  whose  characters  and  attain- 
ments entitle  it  to  great  weight;  yet,  in  view  of  the  prior  long  period 
of  unsettled  professional  and  judicial  opinion  in  England  upon  the 
question,  that  the  court  was  not  one  of  final  resort,  and  that  the 
decision  has  encountered  adverse  criticism  from  high  authority  (Ben- 
jamin on  Sales,  sec.  126,  ed.  of  1892),  it  cannot  be  considered  as 
finally  settling  the  law  of  England  on  this  subject. 

TIh:  1  onflict  among  the  American  cases  on  the  subject  cannot  be 
wholly  reconciled.  In  Massachusetts,  Maine,  Maryland,  Kentucky 
and  Connecticut,  sales  of  growing  trees,  to  be  presently  cut  and 
removed  by  the  vendee,  an-  held  not  to  be  within  the  operation  of 
the  fourth  section  <>f  the  Statute  of    Frauds.     Claflin  et  al.  v.  Car- 


II.  4-]  MODES    OF    TRANSFER.  tf 

penter,  4  Mete.  (Mass.)  580;  Nettleton  v.  Sikes,  8  Mete.  (Mass.)  34; 
Bostwick  v.  Leach,  3  Day,  (Conn.)  476;  Erskine  v.  Plummer,  7  Me. 
447;  Cutler  v.  Pope,  13  Me.  377;  Cain  v.  McGuire,  etc.,  13  B.  Mon. 
340;  Byassee  v.  Reese,  4  Mete.  (Ky.)  372;  Smith  v.  Bryan,  5  Md. 
141.  In  none  of  these  cases  except  4  Met.  (Ky.)  373,  and  in  13  B. 
Mon.  340,  had  the  vendor  attempted  to  repudiate  the  contract, 
before  the  vendee  had  entered  upon  its  execution,  and  the  statement 
of  facts  in  those  two  cases  do  not  speak  clearly  upon  this  point.  In 
the  leading  English  case  before  cited,  Marshall  v.  Green,  1  C.  P. 
Div.  35,  the  vendee  had  also  entered  upon  the  work  of  felling  the 
trees  and  had  sold  some  of  their  tops  before  the  vendor  counter- 
manded the  sale.  These  cases,  therefore,  cannot  be  regarded  as 
directly  holding  that  a  vendee,  by  parol,  of  growing  timber  to  be 
presently  felled  and  removed,  may  not  repudiate  the  contract  before 
anything  is  done  under  it;  and  this  was  the  situation  in  which  the 
parties  to  the  case  now  under  consideration  stood  when  the  contract 
was  repudiated.  Indeed,  a  late  case  in  Massachusetts,  Giles  v. 
Simonds,  15  Gray,  441,  holds  that,  "  The  owner  of  land,  who  has 
made  a  verbal  contract  for  the  sale  of  standing  wood  to  be  cut  and 
severed  from  the  freehold  by  the  purchaser  may  at  any  time  revoke 
the  license  which  he  thereby  gives  to  the  purchaser  to  enter  on  his 
land  to  cut  and  carry  away  the  wood,  so  far  as  it  relates  to  any 
wood  not  cut  at  the  time  of  the  revocation." 

The  courts  of  most  of  the  American  States,  however,  that  have 
considered  the  question,  hold,  expressly,  that  a  sale  of  growing  or 
standing  timber  is  a  contract  concerning  an  interest  in  lands,  and 
within  the  fourth  section  of  the  Statute  of  Frauds.  Green  v.  Arm- 
strong, 1  Denio,  550;  Bishop  v.  Bishop,  1  Kernan,  123;  Westbrook  v. 
Eager,  1  Harr.  (N.  J.)  81;  Buck  v.  Pickwell,  27  Vt.  157;  Cool  v. 
Box  and  Lumber  Co.,  87  In  d.  531;  Terrell  v .  Frazier,  79  In  J.  473; 
Owens  v.  Lewis,  46  Ind.  488;  Armstrong  v.  Lawson,  73  Ind.  498; 
Jackson  v.  Evans,  44  Mich.  510;  Lyle  v.  Shinnebarger,  17  Mo.  App. 
66;  Hoive  v.  Batchelder,  49  N.  H.  204;  Putney  v.  Day,  6  N.  H.  430; 
Bowers  v.  Bowers,  95  Pa.  St.  477;  Daniels  v.  Bailey,  43  Wis.  566; 
Lillie  v.  Dunbar,  62    Wis.  198;  Knox  v.  Haralson,    2    Tenn.  Ch.  232. 

The  question  is  now,  for  the  first  time,  before  this  court  for  deter- 
mination; and  we  are  at  liberty  to  adopt  that  rule  on  the  subject, 
most  conformable  to  sound  reason.  In  all  its  other  relations  to  the 
affairs  of  men,  growing  timber  is  regarded  as  an  integral  part  of  the 
land  upon  which  it  stands;  it  is  not  subject  to  levy  and  sale  upon 
execution,  as  chattel  property;  it  descends  with  the  land  to  the  heir, 
and  passes  to  the  vendor  with  the  soil.  Jones  v.  Timmons,  21  Ohio 
St.  596.     Coal,  petroleum,  building  stone,  and  many  other  substances 


38  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

constituting  integral  parts  of  the  land,  have  become  articles  of  com- 
merce, and  easily  detached  and  removed,  and,  when  detached  and 
removed,  become  personal  property,  as  well  as  fallen  timber;  but 
no  case  is  found  in  which  it  is  suggested  that  the  sales  of  such  sub- 
stances, with  a  view  to  their  immediate  removal,  would  not  be  within 
the  statute.  Sales  of  growing  timber  are  as  likely  to  become  the 
subjects  of  fraud  and  perjury  as  are  the  other  integral  parts  of  the 
land,  and  the  question  whether  such  sale  is  a  sale  of  an  interest  in 
or  concerning  lands,  should  depend,  not  upon  the  intention  of  the 
parties,  but  upon  the  legal  character  of  the  subject  of  the  contract, 
which,  in  the  case  of  growing  timber,  is  that  of  realty. 

This  rule  has  the  additional  merit  of  being  clear,  simple  and  of 
easy  application,  qualities  entitled  to  substantial  weight  in  choosing 
between  conflicting  principles. 

Whether  circumstances  of  part  performance  might  require  a  modi- 
fication   of    this    rule,    is    not    before  the  court   and   has  not  been 

considered. 

Judgment  affirmed. 


5.   In  Form  of  Contract   for  a  Sale. 

GREEN  v.  ARMSTRONG. 

1  Denio  (N.  Y.),  550.  —  1845. 

By  the  Court,  Beardsley,  J.  —  A  verbal  contract  was  made  between 
these  parties,  by  which  the  defendant  agreed  to  sell  certain  trees 
then  standing  and  growing  on  his  land,  to  the  plaintiff,  with  liberty 
to  cut  and  remove  the  same  at  any  time  within  twenty  years  from 
the  making  of  the  contract.  A  part  of  the  trees  were  cut  and 
removed  under  this  agreement,  but  the  defendant  then  refused  to 
permit  any  more  to  be  taken,  and  for  this  the  plaintiff  brought  his 
action  in  the  Justice's  Court,  where  a  judgment  was  rendered  in  his 
favor.  On  the  trial  of  the  cause  the  defendant  objected  to  proof  of 
such  parol  contract,  but  the  objection  was  overruled.  The  judg- 
ment was  removed  by  certiorari  to  the  Court  of  Common  Pleas  of 
Oneida  county,  and  was  reversed  by  that  court,  on  the  ground,  as 
the  record  states,  that  the  contract,  not  being  in  writing,  was  void 
by  the  Statute  of  Frauds.  |  The  opinion  next  disposes  of  certain 
technical  questions  and  then  proceeds  as  follou>s.~\ 

The  revised  statutes l  declare  that  no  "  interest  in  lands  "  shall 
1,,-  ,  reated,  unless  by  deed  <>r  conveyance  in  writing;  and  that  every 


See  .'  224  "f  the  New  York  Real  Property  Law  of  1896.  —  En. 


II.    5-]  FORM    OF   CONTRACT    FOR   A   SALE.  3Q 

contract  for  the  sale  of  "  any  interest  in  lands  "  shall  be  void  unless 
in  writing.  (2  R.  S.  134,  sees.  6,  8.)  Certain  exceptions  and  quali- 
fications to  these  enactments  are  contained  in  the  sections  referred 
to,  but  none  of  which  touch  the  question  now  before  the  court:  and 
so  far  as  respects  this  question  the  former  statute  of  New  York,  and 
the  English  statute  of  29  Charles  2,  ch.  3,  contain  similar  provisions. 
(1  R.  L.  of  1813,  p.  78;   Chit,  on  Cont.  299.) 

The  precise  question  in  this  case  is,  whether  an  agreement  for  the 
sale  of  growing  trees,  with  a  right  to  enter  on  the  land  at  a  future 
time  and  remove  them,  is  a  contract  for  the  sale  of  an  interest  in 
land.  If  it  is,  it  must  follow  that  the  one  declared  on  in  this  case, 
not  being  in  writing,  was  invalid,  and  the  judgment  of  the  common 
pleas,  reversing  that  of  the  justice,  was  correct  and  must  be  affirmed. 

And  in  the  outset  I  must  observe,  that  this  question  has  not,  to 
my  knowledge,  been  decided  in  this  State.  It  has,  however,  arisen 
in  the  English  courts,  and  in  some  of  those  of  our  sister  States;  but 
their  decisions  are  contradictory,  and  the  views  of  individual  judges 
wholly  irreconcilable  with  each  other.  Greenleaf's  Ev.  (2d  ed.)  sec. 
271,  and  notes;  Chit,  on  Cont.  299  to  302;  4  Kent's  Com.  (5th  ed.) 
450-1.  We  are,  therefore,  as  it  seems  to  me,  at  full  liberty  to 
adopt  a  broad  principle,  if  one  can  be  found,  which  will  determine 
this  precise  question  in  a  manner  which  our  judgments  shall  approve, 
and  especially  if  it  be  equally  applicable  to  other  and  analogous  cases. 

By  the  statute,  a  contract  for  the  sale  of  "  any  interest  in  lands  " 
is  void  unless  in  writing.  The  word  land  is  comprehensive  in  its 
import,  and  includes  many  things  besides  the  earth  we  tread  on,  as 
waters,  grass,  stones,  buildings,  fences,  trees,  and  the  like;  for  all 
these  may  be  conveyed  by  the  general  designation  of  land.  1  Shep. 
Touch,  by  Preston,  91;  1  Inst.  4;  1  Preston  on  Estates,  8;  2  Black. 
Com.  17,  18;  1  R.  S.  387,  sec.  2;  2  Id.  137,  sec.  6.  Standing  trees 
are,  therefore,  part  and  parcel  of  the  land  in  which  they  are  rooted, 
and  as  such  are  real  property.  They  pass  to  the  heir  by  descent  as 
part  of  the  inheritance,  and  not,  as  personal  chattels  do,  to  the 
executor  or  administrator.  Toller's  Law  of  Executors,  193-5;  2 
Black.  Com.  by  Chitty,  122,  note;  Rob.  on  Frauds,  365-6;  Richard 
Liford's  Case,  11  Rep.  46;  Com.  Dig.  Biens,  (H.)  And  being 
strictly  real  property,  they  cannot  be  sold  on  an  execution  against 
chattels  only.  Score//  v.  Boxall,  1  Younge  &  Jer.  396;  Evans  v. 
R>berts,  5  Barn.   &  Cress.  829. 

It  is  otherwise  with  growing  crops,  as  wheat  and  corn,  the  annual' 
produce  of  labor  and  cultivation  of  the  earth;  for  these  are  personal 
chattels,  and  pass  to  those  entitled  to  the  personal  estate,  and  not 
to  the  heir.     Toller,  150,  194;  2   Black.  Com.  404.     They  may  also 


40  REAL   AND    PERSONAL    PROPERTY.      [PT.   I.   CH.   II. 

be  sold  on  execution  like  other  personal  chattels.  Whipple  v.  Foot, 
2  John.  418;  Jones  v.  Flint,  10  Adol.  &  Ellis,  753;  Peacock  v. 
Purvis,  2  Brod.  &  Bing.  362;  Hartwell  v.  Bissell,  17  John.   128. 

These  principles  suggest  the  proper  distinction.  An  interest  in 
personal  chattels  may  be  created  without  a  deed  or  conveyance  in 
writing,  and  a  contract  for  their  sale  may  be  valid  although  by  parol. 
But  an  interest  in  that  which  is  land  can  only  be  created  by  deed  or 
written  conveyance;  and  no  contract  for  the  sale  of  such  an  interest 
is  valid  unless  in  writing.  It  is  not  material  and  does  not  affect  the 
principle,  that  the  subject  of  the  sale  will  be  personal  property  when 
transferred  to  the  purchaser  If,  when  sold,  it  is  in  the  hands  of 
the  seller,  a  part  of  the  land  itself,  the  contract  is  within  the  statute. 
These  trees  were  part  of  the  defendant's  land,  and  not  his  personal 
chattels.  The  contract  for  their  sale  and  transfer,  being  by  parol, 
was,  therefore,  void. 

The  opinion  of  the  court  in  the  case  of  Dunne  v.  Ferguson,  1 
Hayes  Irish  R.  542,  contains  one  of  the  best  illustrations  of  this 
question.  That  case  is  thus  stated  in  Stephen's  N.  P.  1971: 
"  The  facts  of  the  case  were,  that  in  October,  1830,  the  defendant 
sold  to  the  plaintiff  a  crop  of  turnips,  which  he  had  sown  a  short 
time  previously,  for  a  sum  less  than  ten  pounds.  In  February,  1831, 
and  previously,  while  the  turnips  were  still  in  the  ground,  the 
defendant  severed  and  carried  away  considerable  quantities  of 
them,  which  he  converted  to  his  own  use.  No  note  in  writing 
was  made  of  the  bargain.  It  was  contended  for  the  defendant 
that  the  action  of  trover  did  not  lie  for  things  annexed  to  the 
freehold,  and  that  the  contract  was  of  no  validity  for  want  of 
a  note  or  memorandum  in  writing  pursuant  to  the  Statute  of 
Frauds.  Upon  the  foregoing  facts  Chief  Baron  Joy  observed, 
(Barons  Smith,  Pennefeather  and  Foster,  concurring,):  'The 
general  question  for  our  decision  is,  whether  there  has  been  a  con- 
tract for  an  interest  concerning  lands  within  the  second  section  of 
the  Statute  of  Frauds?  or  whether  it  merely  concerned  goods  and 
chattels?  And  that  question  resolves  itself  into  another,  whether 
or  not  a  growing  crop  is  goods  and  chattels?  In  one  case  it  has 
been  held,  that  a  contract  for  potatoes  did  not  require  a  note  in 
writing,  because  the  potatoes  were  ripe;  and  in  another  case,  the 
distinction  turned  upon  the  hand  that  was  to  dig  them,  so  that  if 
dug  by  A.  15.,  they  were  potatoes,  and  if  by  C.  1).,  they  were  an 
interest  in  lands.  Su<  h  a  <  nurse  always  involves  the  judge  in  per- 
plexity,  and  the  case  in  obscurity.  Another  criterion  must,  there- 
fore, be  had  recourse  to;  and,  fortunately,  the  later  cases  have 
rested    tin-    matter    nn    a    more    rational    and    solid    foundation.       At 


II.   5]  FORM    OF   CONTRACT   FOR   A    SALE.  41 

common  law,  growing  crops  were  uniformly  held  to  be  goods;  and 
they  were  subject  to  all  the  leading  consequences  of  being  goods,  as 
seizure  in  execution,  etc.  The  Statute  of  Frauds  takes  things  as  it 
finds  them,  and  provides  for  lands  and  goods  according  as  they  were 
so  esteemed  before  its  enactment.  In  this  way  the  question  may  be 
satisfactorily  decided.  If,  before  the  statute,  a  growing  crop,  has 
been  held  to  be  an  interest  in  lands,  it  would  come  within  the  second 
section  of  the  act,  but  if  it  were  only  goods  and  chattels,  then  it 
came  within  the  thirteenth  section.  On  this,  the  only  rational 
ground,  the  cases  of  Evans  v.  Roberts,  5  Barn.  &  Cress.  829;  Smith 
v.  Surman,  9  Id.  561;  and  Scorell  v.  Boxall,  1  Young  &  Jer.  396, 
have  been  decided.  And  as  we  think  that  growing  crops  have  all 
the  consequences  of  chattels,  and  are  like  them,  liable  to  be  taken 
in  execution,  we  must  rule  the  points  saved  for  the  plaintiff." 

Various  other  decisions  have  proceeded  on  the  same  principle, 
although  it  has  nowhere  been  stated  and  illustrated  with  the  same 
clearness  and  force  as  in  the  opinion  of  Clvef  Baron  Joy. 

The  following  cases  may  be  cited  to  show  that  growing  crops  of 
grain  and  vegetables,  fructus  industriales,  being  goods  and  chattels, 
and  not  real  estate,  may  be  conveyed  by  a  verbal  contract,  as  they 
may  also  be  sold  on  execution  as  personal  chattels.  Carrington  v. 
Roots,  2  Mees.  &  Wels.  248;  Sainsbury  v.  Mathews,  4  Id.  343;  Randall 
v.  Ramer,  2  John.  421,  note;  Mumford  v.  Whitney,  15  Wend.  387; 
Austin  v.  Sawyer,  9  Cowen,  39;  Jones  v.  Flint,  10  Adol.  &  Ellis,  753; 
Warwick  v.  Bruce,  2  Maule  &  Selw.  205 ;  Graves  v.  Weld,  5  Barn.  & 
Adol.  105. 

But  where  the  subject-matter  of  a  contract  of  sale  is  growing  trees, 
fruit,  or  grass,  the  natural  produce  of  the  earth,  and  not  annual  pro- 
duction raised  by  manurance  and  the  industry  of  man,  as  they  are 
parcel  of  the  land  itself,  and  not  chattels,  the  contract,  in  order  to 
be  valid,  must  be  in  writing.  Teal  v.  Auty,  2  Brod.  &  Bing.  99; 
Putney  v.  Day,  6  N.  Hamp.  R.  430;  Olmstead  v.Niles,  7  Id.  522; 
Crosby  v.  Wadsworth,  6  East,  602;  Rodwell  v.  Phillips,  9  Mees.  & 
Wels.  501;  Jones  v.  Flint,  10  Adol.  &  Ellis,  753. 

The  contract  in  this  case  was  within  the  statute,  and  being  by 
parol  was  void.  The  judgment  of  the  common  pleas  must  be 
affirmed. 

Judgment  affirmed. 


42  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

6.  In    the    Order   in    Which    Property    May  be  Reached    for 
the  Satisfaction  of   Debts  of  its  Owner. 

WEBSTER  v.  PARKER. 

42  Mississippi,  465.  —  1869. 

Shackelford,  C.  J.,  delivered  the  opinion  of  the  Court. 

This  was  a  bill  filed  in  the  Chancery  Court  of  Holmes  county,  by 
Ann  H.  Webster  and  her  husband,  against  the  defendants  in  error, 
to  enjoin  the  sale  of  the  southeast  quarter  of  section  16,  town  13; 
of  range  No.  2,  east,  levied  upon  by  virtue  of  certain  writs  of  fieri 
facias,  issued  upon  judgments  obtained  against  J.  M.  Stigler,  sheriff, 
and  administrator  de  bonis  non  of  the  estate  of  Robert  Howard, 
deceased. 

The  bill  shows  that  the  complainant,  Ann  H.  Webster,  is  the 
daughter  and  one  of  the  heirs-at-law  of  Robert  Howard,  deceased; 
that  said  Howard  died  seized  and  possessed  of  a  large  real  and  per- 
sonal estate,  and  left  a  will  devising  his  estate  to  his  widow  Sarah 
and  her  three  children;  that  in  the  distribution  of  the  estate  the 
land  levied  upon  was  assigned  to  her  as  a  portion  of  the  real  estate 
of  her  deceased  father;  that  she  was  in  possession  of  it  at  the  time 
of  filing  her  bill.  It  is  further  alleged  that  the  said  Sarah  was 
appointed  executrix  of  the  estate  of  her  husband,  by  his  last  will, 
etc.,  and  that  she  qualified  and  gave  bond,  and  took  possession  of 
the  entire  estate;  that  she  died  in  1862,  and  that  J.  M.  Stigler,  the 
sheriff  of  Holmes  county,  administered  upon  her  estate,  and  rendered 
a  final  account  of  her  administration  of  the  estate  of  Robert  Howard, 
deceased,  at  the  August  term,  1867,  of  the  said  Probate  Court, 
showing  a  balance  unadministered  or  unaccounted  for  by  said 
executrix  of  $9,443.21  for  money,  cotton,  and  other  effects  received 
by  her. 

It  is  further  alleged  that  the  personal  estate  of  Robert  Howard, 
deceased,  was  more  than  sufficient  to  pay  the  debts  of  the  estate, 
aside  from  that  which  has  been  distributed  to  the  heirs-at-law,  or 
that  may  now  be  on  hand;  and  that  whatever  insufficiency  of  assets 
there  may  be  to  pay  the  debts  of  the  estate  is  in  consequence  of  a 
-  tavt't,  as  shown  by  the  final  account  of  J.  M.  Stigler  as  admin- 
istrator of  Sarah  Howard,  the  executrix  of  her  deceased  husband's 
estate. 

It  appears  further  from  the  record  that  said  J.  M.  Stigler,  sheriff, 
was  appointed  by  said  Probate  Court  administrator  de  bonis  non  of 
the  estate  of  Robert  Howard,  and  that  during  his  administration  of 
said  estate  the  judgments  were  obtained  against  him,  upon  which 


II.  6.]      ORDER  IN  WHICH  PROPERTY  IS  TAKEN  FOR  DEBTS.         43 

the  executions  ol  fi  fa.  were  issued  and   levied   upon   the   land  in 
question. 

An  injunction  was  issued,  stopping  the  sale  of  the  said  tract  of  land. 

A  demurrer  was  filed  to  the  bill  of  plaintiffs  in  error,  assigning 
various  grounds;  the  demurrer  was  sustained,  and  the  bill  dismissed. 

To  reverse  this  decree  the  plaintiffs  in  error  prosecute  this  writ  of 
error. 

The  action  of  the  court  below  in  sustaining  the  demurrer  of 
defendants  in  error  is  made  the  only  ground  for  error  in  this  court, 
which  is,  that  "  the  court  erred  in  sustaining  the  demurrer  to  the 
said  bill,  because  the  lands  of  plaintiffs  in  error  are  not  chargeable 
with  the  debts  of  their  ancestor,  and  cannot  be  subjected  to  pay- 
ment thereof  until  the  personal  estate  is  exhausted." 

"  The  protection  of  lands  and  tenements  and  hereditaments  from 
sale,  for  payment  of  debts  of  decedents,  until  the  personal  estate  is 
exhausted,  will  protect  a  leasehold  estate  in  lands  until  the  final  dis- 
position of  the  personal  estate." 

It  is  insisted  in  behalf  of  the  plaintiffs  in  error  that  the  lands 
levied  upon,  under  the  executions  issued  upon  the  judgments 
obtained  against  J.  M.  Stigler,  the  administrator  de  bonis  nonoi  the 
estate  of  Robert  Howard,  in  favor  of  defendants  in  error,  are  not 
subject  to  sale,  because  there  was  a  much  larger  amount  of  personal 
estate  left  by  Robert  Howard  than  was  sufficient  to  pay  all  his 
debts,  which  passed  into  the  hands  of  his  executrix,  Sarah  Howard, 
and  that  before  they  can  subject  the  land  in  question  to  sale  under 
their  judgments  they  must  pursue  the  sureties  on  the  official  bond 
of  Sarah  Howard,  as  executrix  upon  said  estate. 

This  position  of  counsel  would  be  tenable  if  the  lands  in  question 
were  not  a  leasehold  estate;  as  by  the  demurrer  it  is  admitted  that 
there  was  at  the  time  of  the  death  of  Robert  Howard  three  times 
as  much  personal  estate  as  was  sufficient  to  pay  all  the  debts  of  the 
estate,  and  that  a  large  amount  of  this  property  has  been  wasted  by 
the  executrix,  Sarah  Howard,  deceased. 

This  court  has  held,  that  when  personal  assets  largely  in  excess  of 
the  amount  of  the  claims  against  an  estate  had  passed  into  the 
hands  of  an  administrator,  and  had  never  been  administered  or 
accounted  for,  the  lands  of  a  decedent  would  not  be  decreed  to  be 
sold  to  pay  his  debts  unless  the  creditor  had  exhausted  all  remedy 
in  due  legal  form  against  the  administrator  and  his  sureties.  Paine 
v.  Pendleton  et  a/.,  32  Miss.  Rep.  p.  320;  Evans  v.  Fisher,  40  Miss. 

It  is  admitted  in  the  argument  of  counsel,  and  shown  by  the 
record,  that  the  interest  of  plaintiffs  in  error  in  the  land  in  ques- 
tioned is  only  a  leasehold  interest. 


44  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.  CH.  II. 

Any  estate  less  than  a  freehold,  such  as  estates  for  years,  are 
chattel  interests,  and  if  they  continue  for  a  longer  period  than  the 
life  of  the  tenant,  they  go  to  his  personal  representatives,  his 
executors  or  administrators,  i  Prest.  on  Est.,  p.  203;  1  Wash,  on 
Real  Prop.,  p.  60. 

This  court  has  adjudicated  upon  the  precise  question  involved  in 
the  case  under  consideration  —  the  interest  vested  in  lessees  of 
sixteenth  sections  in  this  State,  where  the  lease  is  for  ninety-nine 
years,  as  was  the  case  of  the  lease  to  the  ancestor  of  the  plaintiff  in 
error,  Mrs.  Ann  H.  Webster  —  holding  that  such  leases  are  of  no 
higher  dignity  than  a  lease  or  term  for  one  year,  and  that  the  leased 
premises  go  into  the  hands  of  the  administrator  or  executor  of  the 
lessee,  to  be  administered  as  any  other  chattel  and  not  to  the  heir. 
Dillingham  v .  Jenkins,  7  S.  &  M.  Rep.  p.  479. 

In  many  of  the  States  of  the  Union,  by  statute,  these  leasehold 
estates  for  ninety-nine  years  are  made  descendible  to  the  heirs  of 
the  lessees.  It  is  to  be  regretted  that  there  is  not  a  similar  statute 
in  this  State,  as  many  of  the  homes  of  widowed  families  are  upon 
such  estates. 

We  shall  adhere  to  the  doctrine  laid  down  in  the  foregoing 
authorities,  and  affirm  the  decision  of  the  chancellor  sustaining  the 
demurrer,  and  dismissing  the  bill  of  plaintiffs  in  error. 

The  only  remedy  for  the  plaintiffs  in  error  is  to  pursue  the  estate 

of  the  defaulting  executrix  and  the  sureties  upon  her  official  bond 

for  the   loss  they  will   have  to  sustain  by  the  sale  of  the  leasehold 

estate  in  question. 

Let  the  decree  be  affirmed. 


7.  What  Law  Governs  in  Case  of  Conflict  of  Laws. 

DESPARD  v.  CHURCHILL. 

53  New  York,  192.  —  1873. 

Action  for  the  construction  of  a  will. 

Folger,  J.  — The  testator  had  his  domicile  in  the  State  of  Cali- 
fornia. He  made  his  will  there.  No  question  is  made  but  that  it 
i-;  in  all  of  its  provisions  valid  by  the  law  of  that  State.  It,  how- 
ever, by  its  terms,  disposes  of  certain  property  in  this  State,  and  by 
provisions  which  arc  invalid  here,  inasmuch  as  they  run  counter  to 
..in-  statute  law.  1  K.  S.  723,  sec.  15;  Id.  773,  sec.  1.  The 
Statute    law    lure    referred    to   embodies   the   policy  of   this  State  in 


II.   7-J         WHAT    LAW    GOVERNS    IN    CONFLICT   OF    LAWS.  45 

relation  to  perpetuities  and  accumulations.  As  this  sovereignty  will 
not  uphold  a  devise  of  a  bequest  by  one  of  its  citizens  in  contra- 
vention of  that  policy,  it  will  not  give  its  direct  aid  to  sustain, 
enforce  or  administer  here  such  a  devise  or  bequest  made  by  a 
citizen  of  another  sovereignty.  See  Chamberlain  v.  Chamberlain, 
43  N.  Y.  424.  Yet  it  is  no  part  of  the  policy  of  this  State  to  inter- 
dict perpetuities  or  accumulation  in  another  State.     Id.  434. 

The  property  in  this  State  affected  by  this  will  is  leasehold  estates 
held  by  leases  for  a  short  term  of  years.  This  is,  at  common-law, 
personal  property.  3  Kent,  401;  2  Id.  342;  Merry  v.  Hallctt,  2 
Cow.  497;  Brewster  v.  Hill,  1  N.  H.  350.  The  statutes  of  this  State 
have,  for  some  purposes,  modified  its  character.  Estates  for  years 
are  denominated  estates  in  lands.  1  R.  S.  722,  sec.  1;  Id.  750, 
sec.  10;  Id.  762,  sec.  t,^.  They  are  still  chattels  real  (Id.  722, 
sec.  5),  and  are  not  classed  as  real  estate  in  the  chapter  of  "  title  to 
property  by  descent."  Id.  754,  sec.  27.  A  judgment  binds  and 
is  a  charge  upon  them  (2  Id.  359,  sec.  4),  yet  they  go  to  the  personal 
representatives  as  assets  for  distribution.  Id.  82,  sec  6 ;  and  see 
Pugsley  v.  Aikin,  11  N.  Y  498.  They  vest  in  the  executors  as  a 
part  of  the  testator's  personal  estate.  These  leasehold  estates 
must,  for  the  purposes  of  this  case,  be  treated  as  personal  property. 

Personal  property  is  subject  to  the  law  which  governs  the  person 
of  its  owner  as  to  transmission  by  last  will  and  testament;  and  this 
principle,  though  arising  in  the  exercise  of  international  comity,  has 
become  obligatory  as  a  rule  of  decision  by  the  courts.  Parsons  v. 
Lyman,  20  N.  Y.  103.  x\nd,  as  a  general  rule,  the  distribution  of 
personal  property,  wherever  made,  must  be  according  to  the  law  of 
the  place  of  the  testator's  domicile.  Harvey  v.  Richards,  1  Mason, 
381-407. 

The  cases  are  not  uncommon  in  which  a  testamentary  disposition 
made  in  a  foreign  jurisdiction  has  controlled  the  transmission  of 
personal  property  in  this.  Usually  the  administration  of  the  estate 
has  been  committed  by  the  will  to  citizens  of  that  jurisdiction. 
They  have  acquired  the  possession  and  control  of  the  property 
through  voluntary  payment  or  surrender,  or,  by  making  probate  of 
the  will  here,  have  obtained  auxiliary  letters  testamentary,  and 
under  these  have  enforced  collection  or  surrender.  In  such  case, 
those  charged  with  the  administration  are  liable  to  account  here  for 
the  assets  collected  by  the  authority  granted  here.  It  seems  to  have 
been  generally  held,  that  where  there  are  domestic  creditors  of  the 
estate,  payment  of  the  debts  may  be  decreed  out  of  the  assets. 
Dawes  v.  Boylston,  9  Mass.  337;  Richards  v.  Dutch,  8  Id.  506;  Harvey 
v.  Richards,   supra.     For  other    purposes,   such  as  the  payment  of 


46  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

legacies  and  the  distribution  of  the  surplus  to  the  next  of  kin,  the 
courts  in  Massachusetts  have  held  that  the  assets  must  be  remitted 
to  the  place  of  the  domicile.  See  cases  above  cited.  But  this 
has  been  questioned  with  great  force  and  reason.  See  Harvey  v. 
Richards,  supra.  And  the  better  rule  is,  that  whether  the  courts 
of  one  State  are  to  decree  distribution  of  the  assets  collected  in  it 
under  auxiliary  letters  granted  by  them,  or  to  remit  the  disposition 
thereof  to  the  courts  of  the  testator's  domicile,  is  not  a  question  of 
jurisdiction,  but  of  judicial  discretion  under  the  circumstances  of 
the  particular  case.  Harvey  v.  Richards,  supra;  Parsons  v.  Lyman, 
supra.  Nor  does  the  fact  that,  by  the  will  in  this  case,  the  testator 
appointed  citizens  of  this  State  as  executors,  as  well  as  citizens  of 
the  State  of  his  domicile,  and  charged  those  here  with  the  care  and 
administration  of  the  property  here,  alter  the  rule.  In  Mason  v. 
Richards,  above  cited,  the  defendant  was  appointed,  in  this  country, 
administrator,  with  the  will  annexed  of  a  testator  domiciled  in  the 
East  Indies,  where  the  executors  resided. 

The  question  then  arises,  under  the  particular  circumstances  of 
this  case,  whether  the  assets  in  this  State  should  not  be  remitted  to 
the  executors  in  the  State  of  California  to  be  administered,  as  they 
may  be,  in  accordance  with  the  directions  of  the  will,  under  the 
laws  of  that  State. 

As  has  been  stated,  the  courts  of  this  State  may  not  directly  aid 
in  carrying  out  here,  a  bequest  which  is  in  violation  of  its  statute 
law,  and  contrary  to  a  policy  of  which  it  is  tenacious.  And  yet  they 
may  not  hold  the  bequest  void,  when  it  is  valid  by  the  law  of  the 
State  by  which  the  disposition  of  the  property  is  to  be  governed. 
The  one  would  be  to  transgress  the  written  law  of  this  State;  the 
other  would  be  to  disregard  an  unwritten  rule  of  law,  well  settled, 
and  of  extensive  and  frequent  application. 

There  are  certain  legacies  appointed  by  the  will  which  are  valid 
under  our  law;  they  are  to  persons  residing  in  the  Atlantic  States. 
The  will  directs  the  executors  here  to  use  from  the  assets  here  to 
pay  those  legacies.  There  is  no  obstacle  of  law,  economy  or  con- 
venience in  the  way  of  this  provision  of  the  will  being  carried  out  to 
its  letter.  The  residue  of  the  assets  should  be  remitted  to  the 
executors  in  California  to  be  administered  there.  This  residue 
will  be  much  less  in  amount  than  the  assets  there.  They  are  lease- 
hold cstairs  of  terms  not  long,  and  will  soon  cease  (if  they  have  not 
already)  to  be  continuously  available  for  any  purpose  of  the  will. 
1  k  re  are  no  creditors  of  the  estate  in  this  State  to  be  protected. 
'I  he  legatees  here  are  protei  ted  by  the  payment  of  the  legacies  to 
th'  in  from  the  assets.      The  next  of  kin  of   the   testator  are  also   the 


II.  7-]  WHAT   LAW    GOVERNS   IN   CONFLICT   OF   LAWS.  47 

annuitants  under  the  provision  of  the  will,  which  is  void  by  our  law. 
As  annuitants,  they  must  soon  rely  mainly  upon  the  fund,  the 
executors  and  the  courts,  in  California.  If  to  them  as  next  of  kin 
were  adjudged  here  a  distribution  of  the  property  here,  it  might  not 
prevent  them  from  claiming  there  as  annuitants.  Thus,  by  conflict 
of  laws  and  adjudication,  there  would  be  a  measureable  thwarting 
of  the  testamentary  intention,  and  the  giving  to  them  of  more  than 
the  testator  designed.  It  seems,  then,  that  the  rule  of  law  above 
mentioned  and  the  circumstances  of  the  case  indicate  that  the  judg- 
ment of  the  Special  Term  directing  a  distribution  of  the  assets  in 
this  State  among  the  next  of  kin  was  not  well  advised,  and  that  the 
judgment  of  the  General  Term  reversing  that  of  the  Special  Term 
in  that  respect  was  proper. 

Certain  other  questions  are  raised  by  the  complaint  and  passed 
upon  by  the  Special  Term,  but  not  noticed  by  the  General  Term; 
and  perhaps  it  was  not  needed  that  they  should  be.  Having  con- 
cluded that  the  assets  here  should  be  remitted  to  the  State  of  Cali- 
fornia to  be  distributed  in  accordance  with  the  law  there,  the 
solution  of  those  questions  for  the  practical  guidance  of  those 
interested,  is  of  necessity  to  be  left  to  the  courts  of  that  State. 

The  order  of  the  General  Term  should  be  affirmed  and  final  judg- 
ment for  respondents  in  pursuance  of  stipulation. 

Order  affirmed,  and  judgment  accordingly. 


WHITE  v.  HOWARD. 
46  New  York,  144.  —  1871. 
Action  for  the  construction  of  a  will. 

Grover,  J.  —  The  testator,  William  Bostwick,  at  the  time  of  his 
death,  in  April,  1863,  was  a  resident  of  the  State  of  Connecticut, 
and  had  beeFTTor  a  number  of  years  prior  thereto.  The  validity  of 
the  bequests  of  his  personal  property,  and  all  questions  of  succession 
thereto,  or  rights  therein,  must  be  determined  under  the  laws  of  that 
State,  and  by  the  courts  of  that  State,  when  the  property,  or  those 
having  the  possession  and  control  thereof,  are  within  its  jurisdiction. 
Parson  v.  Lyman,  20  N.  Y.  103;  Moultrie  v.  Hunt,  23  Id.  394;  Story 
on  Conflict  of  Laws,  sec.  468.  In  addition  to  his  personal  property 
and  real  estate  situated  in  Connecticut,  the  testator,  at  the  time  of 
his  decease,  was  seized  of  real  estate  situated  in  the  city  of  New 
York,  of  great  value.  The  validity  of  the  dev;se  of  the  latter  prop- 
erty, and  all  questions  relating  to  the  title,  must  be  determined  by 


48  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  (JI1.  II. 

the  laws  and  courts  of  New  York,  irrespective  of  the  domicile  of  the 
testator.  Hosford  v.  Nichols,  i  Paige,  220;  Story,  Conflict  of  Laws, 
sees.  424,  428,  445;  4  Kent's  Com.  513.  The  testator,  after  giving 
several  legacies  by  the  previous  clauses  of  his  will,  by  the  seventh 
clause  gave  all  the  rest,  residue  and  remainder  of  his  property,  both 
real  and  personal,  wherever  situated,  to  Henry  White,  John  P. 
Crosby,  and  Pelatiah  Perit  and  the  survivor  of  them,  as  joint  ten- 
ants, in  fee  simple,  upon  certain  specified  trusts  in  favor  of  his 
daughter  Frances,  an  infant,  and  her  children,  should  she  leave  any 
her  surviving,  and  the  descendants  of  any  child,  if  any,  whose  parent 
died  during  the  life  of  his  daughter  and  her  husband,  if  any,  surviv- 
ing her;  and  upon  the  further  trust,  in  case  of  the  death  of  his 
daughter,  leaving  no  child  or  descendant  of  any  child,  or  husband, 
her  surviving  (an  event  which  has  actually  happened),  to  pay  certain 
specified  legacies  to  various  charitable  societies,  and  then  divide 
whatever  remained  of  the  trust  estate  equally  between  the  following 
six  societies,  namely:  The  Southern  Aid  Society;  the  American 
Tract  Society;  the  American  and  Foreign  Christian  Union;  the 
American    Colonization    Society;    the    Trustees    of    the    Board    of 

•  -Domestic  Missions  of  the  General  Assembly  of  the  Presbyterian 
Church  of  the  United  States;  and  the  Board  of  Foreign  Missions  of 
the  same  church.  The  personal  estate  was  more  than  sufficient  to 
pay  all  the  specific  legacies  given  by  the  will.     The  first  question  to 

f  be  determined  is,  whether  any  or  all  of  these  societies  had  capacity 
to  take  real  estate  in  New  York  by  devise.  As  several  of  the  socie- 
ties claim  a  capacity  so  to  take,  upon  grounds  and  principles  different 
from  others,  it  will  be  necessary  to  examine  the  question  as  to 
several  separately.  As  the  Southern  Aid  Society  differs  in  this 
respect  materially  from  all  the  others,  it  will  be  proper  to  consider 
the  question  as  to  that  society  first.     This  was  a  voluntary,  unincor- 

Iporated  charitable  association,  engaged  in  aiding  indigent  evangelical 
churches  and  ministers  in  the  southern  section  of  the  Union,  prior 
t.)  [861.  Whether  it  continued  in  existence  as  a  society  after  that 
period,  and  to  the  time  of  the  death  of  the  testator,  and  until  its 
incorporation  under  the  general  statute  of  the  State,  was  a  contro- 
verted question  upon  the  trial;  but  the  justice  who  tried  the  cause 
found,  in  substance,  that  it  did  so  continue.  That  finding  is  con- 
<  lusive  upon  this  court.  A-yoluntary  association  for  charitable  pur- 
|n<s  cannot,  under  the  law  of  this  State,  take  a  legacy  giverTtcTTt. 
Slirrwootl  v.  American  Bible  Society  and  Others,  1  Keyes,  561.  If 
incapable  of  taking  a  legacy,  it  is  clear  that  it  has  no  capacity  to 
take  by  devise.  *  *  * 
'I'll.-   Xmerican   Colonization   Society  claims  the  one-sixth  of  the 


II.   7]  WHAT   LAW    GOVERNS    IN   CONFLICT   OF   LAWS.  49 

property  under  the  will.  This  society  was  incorporated  in  1836,  by 
an  act  of  the  Legislature  of  Maryland,  by  which  it  was  authorized 
to  take  lands  by  devise,  and  to  sell  and  dispose  of  such  lands  as 
the  society  should  determine  to  be  most  conducive  to  the  objects 
of  the  society,  namely,  the  colonizing  of  the  free  people  of  color  of 
this  country  in  Africa. 

The  principal  question  to  be  determined  in  regard  to  this  society 
is,  whether  it  can  take  land  in  this  State  by  devise.  We  have 
already  seen  that  this  question  must  be  determined  solely  by  the  1 
law  of  this  State.  That  it  can  take  personal  property  by  bequest! 
has  been  determined  by  this  court.  Sherwood  v.  The  American  Bible 
Society  and  Others,  1  Keyes,  561.  By  the  statute  of  this  State  con- 
cerning wills,  passed  in  1^813  (1  R.  L.  364),  all  persons  (other  than! 
bodies  politic  and  corporate)  were  permitted  to  take  lands  by  devise 
and  might  take  to  or  for  any  lawful  purpose  whatsoever,  without 
restraint.  Tixe_ exclusion  of  bodies_politic  and  corporate_from  taking 
lands  by  devise  was  the  law  of  the  State- until  the~Revised  Statutes 
took  effect,  and  applied  to  all  corporations  of  our  own  and  other 
States  and  countries,  unless  the  Legislature,  for  special  reasons, 
authorized  a  particular  corporation  so  to  take.  This  was  the  settled 
policy  of  the  State.  Such  being  the  law  and  policy  of  the  State  at 
the  time  of  the  passage  of  the  Revised  Statutes,  we  find,  that  by  , 
the  first  section  of  the  statute  of  wills,  therein  contained  (2  R.  S. 
57),  all  persons,  with  the  exceptions  therein  specified,  were 
empowered  to  dispose  of  their  real  estate  by  will.  Section  two  of 
the  act  defines  real  estate  for  this  purpose.  Section  three  provides, 
that  such  devise  may  be  made  to  every  person  capable  by  law  of 
holding  real  estate;  but  no  devise  to  a  corporation  shall  be  valid, 
unless  such  corporation  be  expressly  authorized  by  its  charter,  or 
by  statute,  to  take  by  devise.  What  modification- "oF~trre~"1aw  is 
herein  indicated?  By  the  act  of  1813,  bodies  politic  and  corporate 
are  excepted  from  the  persons  who  may  take  by  devise.  By  section 
three  of  the  present  statute  of  wills,  all  persons  capable  by  law  to 
hold  real  estate  are  authorized  so  to  take,  but  providing  that  no 
devise  to  a  corporation  shall  be  valid,  unless  such  corporation,  by 
its  charter  or  by  statute,  be  expressly  authorized  so  to  take.  Had 
the  Legislature,  while  the  act  of  1813  was  in  force,  granted  a  charter 
to  a  corporation  and  had  therein  enacted  that  such  corporation 
might  take  real  estate  by  devise,  can  there  be  a  doubt  that  such  a 
provision  would  have  effected  a  repeal  of  the  act  as  to  such  corpora- 
tion? Or  had  the  Legislature,  by  a  subsequent  statute,  enacted  that 
one  or  any  number  of  designated  existing  corporations,  might  take 
land    by    devise,    such    act    would,    as    to    such    corporation,    have 

LAW   OF  I'ROP.    IN  LAND  4 


5<D  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.   CH.  II. 

repealed  the  exception  in  the  act  of  1813  by  implication.  Section 
three  of  the  present  statute  has  the  same  effect  precisely  upon  all 
corporations  not  expressly  authorized  by  charter  or  statute  to  take 
by  devise,  as  the  exception  in  the  act  of  1813  had  upon  all  existing 
corporations,  and  all  thereafter  created,  unless  the  latter  were 
expressly  authorized  by  their  charter  to  take;  and  we  have  seen  that, 
as  to  both  classes,  a  subsequent  statute,  expressly  authorizing  any 
designated  corporations  to  take  land  under  a  will,  would,  by  impli- 
cation, have  repealed  the  section  as  to  them.  The  only  modification 
of  the  law  intended  by  the  change  in  section  three  was  to  save  the 
right  of  existing  corporations,  authorized  by  their  charter  or  statute, 
to  take  by  devise,  if  any  such  there  were;  for  those  incorporated 
subsequent  to  its  passage  were  as  effectually  deprived  thereby  of 
the  capacity  to  take  by  devise  as  those  incorporated  subsequent  to 
the  act  of  1813  were  by  the  exception.  Neither  could  take,  unless 
expressly  authorized  by  statute  or  charter,  in  which  event  both  could 
take,  unless  some  distinction  exists  between  a  statute  and  charter  of 

,  a  corporation  in  this  respect,  as  used  in  the  section.  That  the  author- 
ity conferred  by  statute  referred  to  in  section  three  means  a  statute  of 
this  State  only  is  clear.  That  a  statute  of  another  State,  conferring 
power  upon  a  New  York  corporation  to  take  land  by  devise,  would 
be  effectual  to  enable  it  so  to  take  in  the  State  passing  it,  is  clear; 

j  but  it  is  equally  plain,  that  it  could  not  affect  its  capacity  to  take  land 
located  in  New  York  by  devise.  This  shows  that  the  word  statute  as 
used  in  section  three  means  a  statute  of  New  York.  It  will  hardly 
be  insisted  that  a  statute  of  another  State,  conferring  power  upon  a 
corporation  created  by  itself,  to  take  land  by  devise  in  New  York, 
will  enable  it  so  to  take,  while  a  similar  statute  conferring  the  same 
power  upon  a  New  York  corporation  will  have  no  such  effect.  But 
it  is  claimed  that,  by  the  true  construction  of  section  3,  power 
is  given  to  all  corporations,  whose  charters  authorize  them  to  take, 
by  devise,  to  take  in  that  manner  in  this  State,  irrespective  of  the 
government  from  which  the  charter  is  obtained.  In  other  words, 
that  section  3  authorizes  all  corporations  to  take  lands  in  this 
State  under  a  will,  whose  charters  confer  a  capacity  so  to  take. 
Creating  or  chartering  corporations  involves  an  exercise  of  the 
legislative  power.  They  may  be  created  by  a  particular  statute, 
granting  the  charter  or  organized  by  virtue  of  general  statute  pre- 
scribing the  mode,  specifying  the  powers  and  privileges  to  be 
enjoyed.  In  either  mode  the  corporation  is,  in  a  legal  sense  created 
by  statute;  and  where  section  three  provides  that  no  devise  to  a 
corporation  shall  be  valid,  unless  such  corporation  be  expressly 
authon/ed   by   its  1  harter,   or  by  statute,   to  take  by  devise,  it  is 


II.   8.]  MEANS   OF   VINDICATING    PROPERTY    RIGHTS.  5 1 

equally  clear  that  such  charters  only  were  intended  as  were  granted 
by  a  statute  of  this  State,  or  organized  under  a  general  statute  of 
the  State,  as  it  is  that  by  the  words,  by  statute,  a  statute  of  the 
State  was  intended.  Any  other  construction  would  work  a  complete 
revolution  of  the  policy  of  the  State.  That  policy,  as  indicated  by 
its  whole  legislation,  is  to  exclude  corporations  generally  from  taking  | 
by  devise.  The  Legislature  at  all  times  have  possessed  the  power 
to  except  such  corporations  as  it  deemed  proper  from  its  operations; 
and  of  late  years  have  exercised  it  with  great  liberality  in  favor  of 
corporations  organized  for  charitable  purposes.  But  there  is  no 
indication  of  a  design  to  abandon  the  general  policy  of  the  State 
by  permitting  other  governments  to  determine  what  corporations 
might  take 'and  hold  lands  in  this  State  by  devise,  under  the  con- 
struction contended  for  by  the  counsel  for  the  colonization  society. 
Any  corporation,  to  which  the  privilege  of  taking  land  by  devise 
was  refused  by  our  Legislature,  might  acquire  that  privilege  by  pro- 
curing and  accepting  a  charter  from  another  State  conferring  it. 
This  would  defeat  the  plain  intention  of  section  3,  which  was  to 
exclude  all  corporations  from  that  right,  except  such  as  our  Legisla- 
ture permitted  for  special  reasons  to  enjoy  it.  It  follows  that  the 
colonization  society  can  take  no  interest  in  the  New  York  real  estate 
under  the  will  of  the  testator.     *     *     *  J 

The  judgment  appealed  from  must  be  affirmed.     *     *     * 


8.  In  the  Method  and  Means  of  Vindicating  Property 

Rights. 

a.   Kinds  of  Action. 

(1.)   For  the  Recovery  of  Property. 

RICKETTS  v.  DORREL. 

55  Indiana,  470.  —  1876. 

Replevin  by  Dorrel  for  a  quantity  of  rails  and  stakes  which 
Ricketts  had  seized  and  built  into  a  fence.  Judgment  below  for 
Dorrel.  On  appeal  the  judgment  was  reversed.  This  is  a  petition 
for  a  rehearing. 

Biddle,  J.  —  The  earnestness  of  the  petition  for  a  rehearing  in 
this  case  convinces  us  of  the  sincerity  of  the  petitioner,  but  it  seems 
to  us  that  he  has  misconceived  the  scope  of  the  opinion  pronounced. 
He  labors  to  convince  us  that  when  a  tree  is  wrongfully  converted 


52  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

into  rails,  they  may  be  replevied;  and  when  timber  is  wrongfully 
cut  and  converted  into  coal,  the  coal  may  be  replevied ;  and  cites 
other  similar  cases.  The  opinion  nowhere  controverts  these  propo- 
sitions. When  an  article  is  made  personal  property  by  being  severed 
from  the  realty  to  which  it  first  belonged,  it  may  be  replevied  as 
long  as  its  separate  identity  can  be  ascertained,  whatever  shape  it 
may  take;  but  when  an  article  of  personal  property,  though  wrong- 
fully taken,  has  become  real  estate  by  being  attached  to  the  realty, 
it  cannot  be  replevied,  because  it  has  lost  its  separate  identity,  and 
its  character  as  personal  property.  To  apply  these  principles  to 
the  present  case:  — If  rails  are  wrongfully  taken  from  a  fence,  they 
become  personal  property  and  may  be  replevied  by  the  owner;  but 
if  rails  are  wrongfully  taken  and  put  into  a  fence,  and  thus  made  a 
part  of  the  realty,  they  cannot  be  replevied,  because  they  have  lost 
their  separate  identity,  and  cannot  be  delivered  without  detaching 
them  from  the  realty,  of  which  they  have  become  a  part.  And  this 
is  precisely  the  case  we  are  considering.  We  have  examined  the 
authorities  cited  by  the  petitioner,  and,  as  we  read  them,  all  the 
cases  in  replevin  are  against  the  petitioner.  In  Varies  v.  £as/ey, 
13  111.  192,  it  is  held,  that  a  party  may  maintain  replevin  for  boards 
made  from  trees  wrongfully  cut  on  his  land;  and  also  held  that  the 
owner  of  personal  property,  wrongfully  taken,  may  replevy  it  so 
long  as  it  can  be  identified,  unless  it  is  annexed  to  or  made  a  part 
of  some  other  thing  which  is  the  principal,  as  timber  converted  into 
a  house,  grain  converted  into  malt,  or  coin  converted  into  a  cup. 
The  appellee  also  labors  hard,  and  cites  many  authorities,  to  show 
us  that  a  wrongdoer  cannot  obtain  any  title  in  the  property  he 
wrongfully  takes,  as  against  the  owner  —  a  proposition  nowhere  dis- 
puted; but  it  does  not  follow  that  the  action  of  replevin  will  lie  in 
all  cases,  merely  because  the  owner  has  not  lost  the  title  to  his  prop- 
erty. Nor  will  our  statute  abolishing  the  distinction  between  the 
forms  of  actions  aid  the  appellee.  The  Legislature  cannot  abolish 
the  distinction  between  personal  and  real  actions,  nor  between  actions 
to  enforce  a  specific  performance  of  a  contract  or  recover  a  specific 
article,  and  those  which  seek  merely  a  money  judgment;  nor 
between  actions  arising  out  of  tort,  and  those  founded  upon  con- 
tract; because  the  distinction  exists  in  fact,  and  not  in  mere  form. 
The  distinction  between  the  actions  of  debt,  covenant,  assumpsit, 
trover,  trespass,  trespass  on  the  case,  and  suits  in  equity  to  recover 
money  directly,  may  be  and  is  abolished  by  the  code,  because  the 
remedy  sought  in  all  these  cases  is  the  same,  namely,  a  money  judg- 
ment. The  appellee,  therefore,  cannot  bring  his  action  in  replevin 
to  re<  over  his  specific  rails  and,  failing  in  that,  maintain  his  case  to 


II.  8.]  MEANS   OF   VINDICATING   PROPERTY    RIGHTS.  53 

recover  a  money  judgment  for  their  value,  merely  because  he  has  not 
lost  his  property  in  the  rails.  The  law  affords  him  ample  remedy  if 
he  rightly  chooses  it;  but  it  is  no  part  of  the  duty  of  this  court  to 
instruct  him  as  to  what  that  remedy  is. 

The  petition  is  overruled. 


BREWSTER  v   HILL. 
1  New  Hampshire,  350.  — 1818. 


Trespass  in  ejectment  to  recover  a  term  of  years.  Wheelock 
owned  the  premises  in  question  in  1796  and  leased  them  to  O.  for 
985  years.  O.  entered  on  the  premises  and  then  died  bequeathing 
all  his  "  personal  estate  "  to  A.  P.  and  wife,  who,  in  1807,  conveyed 
their  interest  to  plaintiff.  Verdict  for  plaintiff  subject  to  opinion 
of  this  court. 

Woodbury,  J.  —  delivered  the  opinion  of  the  Court. 

In  this  case  the  sole  question  is,  whether  the  term  mentioned  in 
the  plaintiff's  writ  would  pass  under  a  devise  of  "  personal  estate." 

The  boundaries  between  real  and  personal  estate  are,  in  certain 
instances,  scarcely  distinguishable;  and,  indeed,  some  species  of 
property  exist  which  have  been  deemed  real  or  personal,  according 
to  the  character  of  the  claimants,  and  the  purpose  for  which  they 
claim.     Vide,   autho.  cited,  post;  Mills  v.  Pierce,  Rock.  Feb.    1819. 

But  we  are  not  aware  of  any  established  principles  or  precedents, 
which  would  make  leases  for  years  anything  more  than  "  personal 
estate."  The  law  in  relation  to  them  was  settled  before  the  land 
itself  could  be  conveyed.  Bac.  Leas.  Co.  Litt.  456.  They  were 
then  for  short  terms,  and  with  an  exclusive  view  to  aid  great  land- 
holders in  the  cultivation  of  the  soil.  Hence  the  lease  passed  to  the 
lessee  no  interest  in  the  premises;  but  was  a  mere  contract,  for  a 
breach  of  which  a  recovery  in  damages  against  the  lessor  was  the 
only  remedy.     Vaugh.  127;  Hayes  v .  Bickerstaff. 

As  the  custom  altered  and  leases  for  longer  terms  became  com- 
mon, the  remedy  of  the  lessee  was  by  statute  extended,  and  he  was 
enabled  to  protect  himself  in  the  occupation  of  the  land  itself. 
21  Hen.  8,  ch.  15. 

Yet  all  the  incidents  of  a  mere  chattel  were  still  attached  to  the 
term  whether  its  continuance  was  for  one  or  for  a  hundred  years. 
Bac.  Leas.  Livery  of  seizin  was  not  necessary  to  pass  the  interest 
as  it  was  to  pass  real  estate.  Litt.  sec.  59.  The  lessee  could  not 
sustain  a  real  action;  but  when  ousted  was  obliged,  as  this  plaintiff 
has  been  in  this  instance,  to  resort  to  trespass  in  ejectment.     3  Bl. 


54  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CI1.  II. 

C.  199.  Nor  could  a  real  action  be  maintained  against  him;  because 
he  was  not  the  owner  of  the  realty  and  could  plead  non  tenure. 
Booth.  His  interest  could  be  devised,  though  at  common-law,  no 
real  estate  would  pass  by  a  will.  Bac.  Leg.  B.  3;  1  Roll.  A.  B.  609. 
It  has  always  been  held,  too,  that  after  the  decease  of  the  lessee, 
the  term  belonged  to  his  executors  or  administrators,  and  not  to  his 
heirs.  1  Leon.  312;  Gillam,Adm.  v.  Lovelace,  5  Ma.  R.  419;  Pet.  of 
Gay,  Adm.  2  John.  C.  376. 

Under  statutes  creating  a  lien  upon  the  real  estate  of  a  debtor 
from  the  time  of  judgment  rendered,  leases  for  years  have  been 
decided  not  to  be  embraced.  8  Co.  171;  Fleetwoods  Case,  1  John. 
C.  223;  Wedenbergh  v.  Morris,  3  Atk.  739;  Bunder  V.Kennedy.  In 
wills,  too,  as  in  the  present  case,  they  have  always  passed  under  the 
expression  "  goods  and  chattels,"  and  in  some  instances  under  that 
of  "  goods  "  alone.  Shep.  Y.  97  Cro.  El.  3S6;  Boardman  v.  Willis, 
1  D.  &  E.  597;  Bac.  Leg.  B.  Nor  is  it  necessary  that  leases  should 
be  acknowledged  and  attested;  as  deeds  must  be  that  convey  "  lands 
and  tenements." — Stat.  191. 

But  we  are  well  aware  of  a  common  impression,  that  long  terms 
are  "  to  all  imaginable  purposes  a  fee  simple  estate:"  (13  Mass.  R. 
403),  that  a  power  "  to  sell  land,"  has  been  held  to  be  duly  executed 
by  leasing  it  for  999  years:  {Cilley  v.  Cay  ford  Hills,  Ap.  1806);  that 
our  statute  of  Feb.  10,  1791,  (Stat.  191)  requires  all  leases  for  more 
than  seven  years  to  be  recorded,  and  that  according  to  Denn  v. 
Barnard  (Cow.  597),  an  adverse  possession  by  the  lessee,  under  a 
long  term,  might  in  time  enable  him  to  claim  a  fee. 

On  principle,  however,  it  is  impossible  to  define  at  what  number  of 
years  a  lease  shall  become  real  estate.  Its  cnaracter  cannot  be 
changed  by  the  length  of  the  term.  Nor  does  our  statute,  or  the 
decisions  last  cited,  appear  upon  examination  to  conflict  with  the 
idea  that  a  lease  for  any  number  of  years  is  not,  as  to  the  lessee's 
heirs,  anything  more  than  "  personal  estate." 

Let  judgment  be  entered  on  the  verdict. 


NASE  v.  PECK. 

3  Johnson's  Cases  (N.  Y.),  128.  —  1802. 

Writ  of  right  for  the  recovery  of  lands  in  Dutchess  county.  The 
jtuige  directed  the  assize  that  if  they  believed  the  boundaries  of 
the  "  Great  Nine  Partners  "  patent  included  the  premises  in  ques- 
tion, they  should  find  for  the  tenant,  Peck,  and  they  found  a  verdict 
accordingly. 


II.  8.]  MEANS   OF   VINDICATING   PROPERTY   RIGHTS.  55 

Per  Curiam.  —  Upon  the  issue  in  this  action  the  mere  right  was 
in  question  between  the. parties.  This  principle  we  must  not  lose 
sight  of.  It  is  clearly  and  firmly  established,  as  the  leading  point 
of  inquiry  in  the  writ  of  right.  The  evidence  requisite  to  establish 
this  right  is  under  the  same  rules  and  regulations  as  in  other  cases. 

The  possession  of  the  tenant  for  thirty-eight  years  was,  in  the 
first  instance,  evidence  of  this  right.  This  presumption  of  right 
was,  however,  repelled  by  the  prior  possession  of  the  ancestor  of  the 
demandant,  and  which  was  attended  with  circumstances  that  ren- 
dered it  very  high  evidence  of  right.  It  existed  thirteen  years  prior 
to  the  tenant's  possession.  It  continued  till  a  descent  was  cast  in 
favor  of  the  demandant;  it  was  destroyed  by  a  possession  com- 
mencing on  the  part  of  the  tenant,  by  abatement  at  least,  if  not  by 
disseizin. 

To  encounter  the  conclusion  resulting  from  the  demandant's  proof, 
the  tenant  produced  the  patent  of  the  Great  Nine  Partners,  dated 
upwards  of  a  century  ago,  not  to  deduce  a  title  from  it  to  himself, 
but  to  show  a  title  out  of  the  demandant. 

This  was,  however,  a  departure  from  the  true  question  between 
the  parties,  to  wit,  which  of  them  had  the  better  right.  If  it  lay 
with  the  tenant  to  show  it,  still  the  direction  of  the  judge  was  wrong. 
The  assize  might  well  have  presumed  a  title  in  the  demandant, 
derived  from  the  patent,  since  his  ancestor  was  the  occupant,  and 
apparent  owner,  fifty  one  years  ago,  and  thirteen  years  prior  to  the 
commencement  of  the  tenant's  tortious  possession.  This,  at  least, 
ought  to  have  been  left  to  the  assize  for  them  to  presume. 

We  are  of  the  opinion,  therefore,  that  the  direction  was  wrong, 
and  that  the  finding  of  the  assize  was  against  evidence,  and  that  a 
new  trial  ought  to  be  awarded. 


Sutherland,   J.,   in  BRADSTREET  v.  CLARKE. 

12  Wendell  (N.  Y.),  602,  659.  — 1834. 

A  writ  of  right  is  the  highest  writ  in  the  law,  and  lies  not  for  the 
recovery  of  any  estate  less  than  a  fee  simple.  3  Bl.  Com.  193 ;  Booth, 
Real  Act.  84.  It  regards  the  legal  estate  only,  and  has  nothing  to 
do  with  mere  equitable  interests.  Even  in  the  possessory  action  of 
ejectment  the  legal  title  always  prevails;  much  more  in  this  action 
(which  is  brought  after  the  ordinary  possessory  remedies  are  lost  by 
lapse  of  time  or  otherwise),  in  which  the  right  of  possession  can  be 
established  only  by  showing  a  full  and  absolute  right  of  property. 


56  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

Our  inquiry,  then,  is  for  the  legal  title.  If  the  demandant  never 
acquired  that,  however  strong  and  persuasive  her  equities  maybe,  or 
may  have  been,  she  cannot  succeed  in  this  action  or  the  former.1 


Kirkpatrick,   C.  J.,  in  Den  ex  dem.  JOHNSON  v.  MORRIS. 
7  New  Jersey  Law,  7.  —  1822. 

This  is  an  ejectment  for  lands  in  Salem.  At  the  trial  of  the  cause, 
it  was  moved  for  a  nonsuit  by  the  defendant's  counsel,  because  the 
lessors  of  the  plaintiff  had  not  shown  a  title  by  deed  or  other  con- 
veyance, nor  a  possession  in  themselves  and  those  under  whom  they 
claimed  for  the  term  of  twenty  years,  and  the  plaintiff  was  called 
accordingly. 

The  ground  of  the  nonsuit,  as  thus  presented  by  the  counsel  and 
taken  by  the  court,  is  not  quite  so  precisely  stated  as  could  have 
been  wished.  From  the  manner  in  which  it  is  expressed,  it  is  left 
doubtful  whether  it  was  intended  to  say,  that  the  lessors  of  the 
plaintiff  had  not  shown  a  possession  of  twenty  complete  years,  and, 
therefore,  not  a  sufficient  one  to  maintain  an  action  of  ejectment,  or 
that  they  had  not  shown  a  possession  within  twenty  years  before 
action  brought,  and,  therefore,  were  barred  by  the  statute. 

It  will  be  necessary,  therefore,  to  look  into  the  case,  and  see  how 
far  the  motion  is  supported  in  point  of  fact,  upon  either  the  one  or 
the  other  of  those  grounds. 

But  before  I  proceed  to  this,  I  feel  myself  constrained,  from  the 
course  which  the  argument  at  the  bar  has  taken,  rather  than  from 
anything  in  the  case  itself,  to  make  a  few  observations  respecting 
the  action  of  ejectment,  as  it  has  been  used  in  this  State,  from  the 
earliest  settlement  of  the  country  down  to  this  time.  I  say  I  feel 
myself  constrained  to  do  this  from  the  course  of  the  argument,  for 
it  has  been  insisted  that  the  plaintiff  in  ejectment  always  has  been, 
and  still  is  obliged,  in  order  to  maintain  his  suit,  to  show,  what  the 
counsel  call  a  complete,  substantive,  impregnable  title,  that  is,  as 
it  has  been  explained,  a  regular  deduction  of  title,  by  deed  from 
Charles  II.  down  to  himself,  or  an  exclusive  and  uninterrupted  pos- 
session  in  himself  and  those  under  whom  lie  claims,  formerly  for 
sixty  years,  then  for  thirty,  and  now  for  twenty,  according  as  the 
e  statutes  of  limitation  prevailed;  or,  in  other  words,  such 

1  i  he  writ  <>f  righl  has  been  abolished  i"  New  York  and  is  practically 
obsolete  in  nearly  all  jurisdictions.  The  possessory  actions  are  now  used  for 
the  trial  of  titles.  —  Ed. 


II.  8.]  MEANS   OF   VINDICATING    PROPERTY    RIGHTS.  57 

a  title  as  might  be  disputed,  indeed,  in  point  of  fact,  but  could 
never  be  overcome  by  one  superior  to  it.  And  by  way  of  fortifying 
this  position,  reference  is  made  to  former  practice,  in  which  it  is  said 
such  deduction  was  uniformly  made,  and  always  required. 

Let  us  examine  this  position  a  little.  By  the  common  law,  estates 
of  freehold  in  lands  passed  by  livery  of  seizin  only,  that  is,  by  a 
delivery  over  of  the  actual  possession.  He,  therefore,  who  was  in  the 
actual  possession  of  land,  was,  prima  facie,  the  tenant  of  the  freehold, 
and  had  in  him  the  heritable  sesina  facit  stipitem.  If  he  were  ousted 
or  dispossessed  of  this  freehold,  by  one  who  had  no  right,  he  might, 
without  process  of  law,  make  a  peaceable  entry,  or,  if  deterred  from 
that,  he  might  make  claim  from  year  to  year,  which  was  called  con- 
tinual claim,  as  near  the  land  as  he  could,  and  such  entry  or  claim 
restored  him  to  his  lawful  seizin,  and  made  him  capable  again  of 
conveying,  either  by  descent  or  purchase.  This  right  of  entry, 
though  it  might  be  tolled  or  taken  away  by  a  descent  cast,  and  so, 
generally  speaking,  must  be  pursued  during  the  life  of  him  that 
made  the  ouster,  or  be  forever  lost,  yet  it  was  limited  to  no  particular 
period  or  number  of  years;  so  that  if  it  was  not  actually  lost  by 
descent  or  otherwise,  the  lawful  owner  might,  at  all  times,  restore 
himself  by  entering  upon  the  wrongdoer,  in  a  peaceable  manner,  and 
turning  him  out;  but  if  he  suffered  it  to  be  once  lost,  he  could  no 
longer  restore  himself  by  his  own  act,  but  must  have  recourse  to  his 
action  at  law.  And,  indeed,  even  where  it  was  not  lost,  as  it  but 
seldom  happened  that  the  wrongdoer  would  tamely  submit  to  be 
turned  out  without  force,  the  owner,  if  his  object  was  to  gain  the  actual 
possession  and  enjoyment  of  the  land,  and  not  merely  to  put  himself 
in  a  capacity  to  make  a  lawful  conveyance,  was  generally  obliged  to 
have  recourse  to  such  action,  and  to  call  to  his  aid  the  process  of 
the  law,  to  restore  to  him  that  right  which  he  could  not  obtain  by 
peaceable  means  without  it;  so  that,  in  most  cases,  it  may  be  said 
he  was  put  to  his  action,  even  when  his  right  of  entry  was  not  tolled 
or  taken  away. 

This  action  might  be,  in  the  first  place,  by  writ  of  entry,  in  which 
he  undertook  to  prove  his  own  former  possession,  and  that  the 
defendant,  or  some  one  under  whom  he  held,  had  dispossessed  him; 
to  which  the  defendant  might  answer  by  denying  the  fact  of  the 
dispossession,  or  by  showing  in  himself  an  older  and  a  better  posses- 
sion; and  then,  upon  the  trial,  it  was  adjudged  for  him  who  had  the 
clearest  right,  or  it  might  be,  in  the  second  place,  after  the  reign  of 
Henry  II.  by  writ  of  assize,  which  went  upon  the  suggestion  that 
the  demandant's  ancestor  had  died  in  possession,  and  that  he  was 
the  next  heir;  and,  therefore,  directed  the  sheriff  to  inquire,  by  a 


58  REAL   AND    PERSONAL   PROPERTY.       [PT.  I.  CH.  II. 

jury,  whether  this  were  so,  and,  it  found  for  the  demandant,  the  land 
was  immediately  restored.  But  still,  even  if  the  demandant  prevailed 
in  these  actions,  it  only  restored  to  him  his  former  possession,  it 
decided  nothing  with  respect  to  the  right  of  property;  all  that  he 
had  to  show,  in  order  to  maintain  his  suit,  was  the  possession  of 
himself  or  his  ancestor,  and  this  might  be  overcome  by  the  defendant 
showing  an  older  and  a  better  possession;  for  it  never  was  pretended 
that  the  demandants  must  be  such  a  possession  as  established  the 
ultimate  right;  for  this  either  party  might  afterwards  resort  to  his 
writ  of  right.  In  these  possessory  actions,  therefore,  neither  the 
deed  of  feoffment  by  which  the  estate  was  created,  nor  the  actual 
livery  of  seizin  upon  such  deed,  were  necessarily  given  in  evidence, 
but  the  mere  possession  only.  And  so,  also,  after  the  29  Car.  II., 
which  directed  that  all  conveyances  of  land  should  be  in  writing, 
and  not  otherwise,  it  was  not  necessary,  upon  the  same  principle, 
to  give  the  writing  in  evidence,  and  the  reason  was  that  the  deed  of 
feoffment  and  livery  of  seizin  thereupon,  in  ancient  times,  and  the 
written  conveyance  under  the  statute,  related  to,  and  were  evidence 
of,  the  commencement  of  the  estate,  and  of  the  ultimate  right  only, 
which  was  not  at  all  in  question;  but  that  they  could  be  no  proof  of 
the  actual  and  subsequent  possession  upon  which  the  ouster  was 
alleged  to  have  been  committed,  and  which  was  the  foundation  of 
those  possessory  actions,  and  the  only  thing  to  be  proved  in  them,  or 
recovered  by  them.  It  is  true  that  those  might  be  given  in  evidence, 
and  might  greatly  strengthen  the  proof  of  possession,  but  they  were 
not  essential  to  the  maintenance  of  the  action;  that  depended  upon 
the  mere  possession. 

To  these  real  actions  for  the  recovery  of  the  possession  of  lands, 
succeeded,  in  common  use,  the  action  of  ejectment.  This  was  not 
originally  devised  as  a  remedy  for  injuries  done  to  real  estate,  that 
is,  to  estates  of  freehold  in  lands,  but  as  a  remedy  for  injuries  done 
to  chattels  real,  such  as  terms  for  years,  which  were  considered  as 
mere  chattel  interests.  But  then,  as  one  who  came  into  a  court  of 
justice  to  complain  that  he  had  been  ousted  of  his  term,  must 
necessarily  show  that  such  term  existed,  and  that  the  lease  under 
which  he  claimed  was  a  good  and  valid  lease,  and,  of  course,  that 
the  lessor  had  a  right  to  make  it,  the  title  of  the  lessor  was  thereby 
brought  into  question  as  fully  and  upon  the  same  principles  as  it 
would  have  been  in  the  real  action;  so  that  though  the  action  of 
ejectment  got  clear  of  all  the  intricacy  and  perplexity  of  the  real 
action,  and  so  became  an  easy  and  expeditious  method  of  trying  the 
title  to  land,  yel  it  required  precisely  the  same  proof  of  title  in  sub- 
stance  a-  the  real  a<  tion  did.     For  though  the  form  of  the  action 


II.  8.j  MEANS   OF   VINDICATING   PROPERTY    RIGHTS.  59 

may  have  been  changed,  yet  the  great  principles  of  right  have  not 
been  changed,  nor  can  they  be  without  a  total  subversion  of  the 
whole  system  of  property  in  land.  In  a  real  action,  the  demandant 
must  show  his  possession,  his  ouster,  and  his  right  to  re-enter;  in  an 
ejectment,  the  lessor  of  the  plaintiff  must  show  the  very  same  thing; 
—  he  must  show  that  he  has  been  in  possession  of  the  land;  that  it 
is  now  withholden  from  him,  which  is  an  ouster;  and  that  he  had  a 
right  to  re-enter  and  make  the  lease  in  question.  I  say  he  must  show 
those  things,  for  the  lease,  entry  and  ouster,  which  are  confessed^ 
are  the  mere  form  of  the  action,  and  having  nothing  to  do  with  the 
substantial  right.  The  title,  therefore,  which  lessor  of  the  plain- 
tiff, by  the  consent  rule,  is  bound  to  rest  upon,  and  which  he  is 
obliged  to  make  out  at  the  trial,  is  his  right  of  entry  (for  if  he  had 
this  right,  it  is  always  confessed  that  he  had  a  right  to  make,  and 
did  make,  the  lease),  a  right  which,  upon  the  principles  of  the  com- 
mon law,  necessarily  results  from  his  having  had  an  anterior  and 
peaceable  possession  of  the  lands  in  question,  and  their  being  now 
withholden  from  him  by  the  defendant;  a  right  too  which  cannot 
be  overcome  by  any  subsequent  possession,  unless  it  has  been  tolled 
or  taken  away  in  the  manner  before  mentioned,  or  is  restrained  by  the 
statutes  of  limitation.      *     *     * 

The  right  of  the  lawful  owner,  therefore,  to  enter  upon  the 
wrong-doer  in  this  extra-judicial  manner,  and  so  to  restore  himself 
to  his  possession  and  make  leases,  etc.,  from  the  first  settlement 
of  the  province  till  the  act  of  1727,  was  wholly  unlimited  in  point 
of  time;  from  that  time  till  the  act  of  17S7  it  was  limited  to 
sixty  years;  after  that,  in  some  cases,  to  thirty  years;  and  since 
the  act  of  1798,  in  all  cases,  with  the  usual  savings,  to  twenty 
years;  and  as  this  right  of  entry  is  the  foundation  of  the  action  of 
ejectment,  that  action,  of  course,  was  limited  in  the  same  manner, 
and  not  otherwise.  But  that  limitation  is  merely  a  limitation  of  the 
time  within  which  the  entry  must  be  made,  and  by  no  possible  con- 
struction, a  designation  of  the  time  during  which  the  possession 
must  have  continued.  Can  any  book  case  be  found  in  which,  since 
the  21  Jac.  1,  a  possession  of  twenty  complete  years  has  been  holden 
necessary  to  maintain  an  ejectment?  None  such  can  be  found.  One 
comes  into  a  court  of  justice  and  says  he  has  been  in  possession  of 
lands  for  five,  ten,  or  fifteen  years,  and  that  the  defendant  has  turned 
him  out,  and  holds  him  out,  shall  he  be  told  he  has  no  redress  because 
he  has  not  been  in  twenty  complete  years?  And  shall  the  defendant 
be  justified  in  withholding  from  him  his  peaceable  possession,  thus 
tortiously  and  forcibly  gained?  Suppose  another  should  enter  and 
turn  him  out,  and  another  him,  shall  the  last  always  hold?     To  what 


60  REAL  AND  PERSONAL  PROPERTY.   [pT.  I.  C1I.  li. 

would  all  this  lead  but  a  mere  trial  of  strength,  in  defiance  of  law; 
for  it  is  directly  in  the  tooth  of  that  universally  acknowledged 
principle,  that  peaceable  possession  itself  is  a  title  which  shall  never 
be  disturbed  but  by  one  who  has  a  better  right,  and  which,  there- 
fore, the  law  will  carefully  protect  until  that  right  be  shown  in  a 
judicial  manner.  And  whether  that  possession  had  lasted  five  years, 
or  ten  years,  or  twenty  years,  the  law  sees  no  difference.  Upon 
what  ground,  then,  is  this  notion  of  possession  of  twenty  complete 
years  founded?  Certainly  the  21  Jac.  1,  says  no  such  thing  —  our 
act  of  1798  says  no  such  thing;  they  merely  limit  the  time  of  entry 
but  require  no  possession  of  twenty  complete  years,  for  this  or  any 
other  purpose.  Well,  if  those  statutes  do  not  require  it,  what  is  it 
that  does  require  it?  Is  it  the  common  law?  Let  us,  then,  lay  the 
statutes  of  limitation  out  of  the  question,  and  then  let  us  inquire 
what  length  of  possession  did  the  common  law  require.  Does  it  say 
anything  about  twenty  years,  or  thirty,  or  fifty,  or  even  three  score 
years?  No.  Time  immemorial  was  its  only  limitation  —  time 
whereof  the  memory  of  man  runneth  not  to  the  contrary,  and  beyond 
which,  of  course,  no  proof  could  possibly  reach.  But  will  any  one 
say,  that  a  possession  for  time  immemorial  was  necessary  to  support 
an  ejectment  or  other  possessory  action?  No  one  will  say  so.  It 
is  true  that  in  early  times  it  was  customary,  in  actions  of  ejectment, 
to  deduce  title  from  the  general  proprietors,  and  thereby  to  cut  off 
all  pretensions  of  the  defendants  at  once,  and  that  this  continued  to 
be  the  custom  up  till  the  Revolutionary  War,  and  for  some  time 
afterwards;  and  it  is  true,  too,  that  this  is  done  even  till  this  day, 
when  it  can  conveniently  be  done,  because  it  is  by  far  the  shortest 
and  safest  course,  for  it  stops  the  mouth  of  the  defendant  in  limine. 
But  the  conclusion  that  is  drawn  from  this,  to  wit,  that  the  ejectment 
was  put  upon  the  same  footing  as  the  writ  of  right,  and  required  the 
same  proof  and  had  the  same  consequences,  is  not  true.  It  never 
was  put  upon  the  footing  of  the  writ  of  right;  it  never  was  conclu- 
sive upon  the  right  of  property;  it  never  did  necessarily  require  such 
deduction  of  title;  but,  on  the  contrary,  always  depended  upon,  and 
was  governed  by,  its  own  proper  principles;  and,  except  in  the 
cases  I  have  mentioned,  kept  within  its  own  proper  bounds.  I  never 
d  of  a  nonsuit  or  a  decision  made  against  the  plaintiff,  upon  the 
grounds  that  he  had  not  made  such  deduction  of  title,  except  in  one 
case  from  Sussex,  1  think,  in  the  Court  of  Errors  at  Perth  Amboy, 
ami  in  that,  probably,  there  might  have  been  intermingled  other 
operative  reasons,  not  much  connected  with  the  case,  and  not  now 
easy  to  be  traced. 

There  lias  been  1  ited  from  one  of  the  books,  Espinasse  (I  think), 


II.   S.J  MEANS    OF    VINDICATING    PROPERTY    RIGHTS.  6l 

a  passage  to  this  effect,  that  proof  of  possession  within  twenty 
years  is  not  only  necessary  to  support  the  title  of  the  lessor  of  the 
plaintiff,  but  such  possession  for  twenty  years,  without  interruption, 
shall  be  a  good  title  in  itself  to  recover  in  ejectment  without  any 
other;  and  from  this  it  has  been  argued  that  a  possession  of  twenty 
years,  at  least,  without  interruption,  is  necessary  to  maintain  this 
action.  But  a  little  attention  to  the  author,  and  to  these  cases  from 
which  he  deduces  his  position,  will  show  satisfactorily  that  this  is  not 
the  meaning.  He  means  to  say,  and  does  say,  that  a  possession 
within  twenty  years  is  sufficient  to  maintain  an  ejectment,  unless  an 
older  and  a  better  possession  be  shown,  but  that  a  possession  for 
twenty  years,  without  interruption,  under  the  21  Jac.  1,  gives  a  right 
of  possession,  than  which  no  better  can  be  shown,  and  which  cannot 
be  overcome  in  this  action,  for  that  the  statute  cuts  off  the  right  of 
entry  from  the  defendant  as  well  as  from  the  plaintiff,  and,  therefore, 
if  he  has  suffered  his  right  to  sleep  for  twenty  years  it  is  gone,  and 
he  could  have  had  no  right  to  make  the  entry  which  is  the  com- 
mencement of  his  present  possession.  The  truth  is,  that  all  posses- 
sory actions  are  founded  upon  a  peaceable  possession  in  the 
demandant  or  plaintiff,  and  those  under  whom  he  claims;  and  such 
possession,  without  regard  to  the  length  of  time  it  may  have  con- 
tinued, is  sufficient  to  maintain  such  action,  and  can  only  be  over- 
come by  an  older  or  better  right. 

I  conclude,  then,  that  the  lessor  of  the  plaintiff,  in  an  action  of 
ejectment,  must  always  count  upon  and  show  a  possession  of  the 
land  within  the  time  to  which  the  right  of  entry  is  limited,  and  under 
our  act  of  1798,  within  twenty  years  next  before  the  action  brought, 
otherwise  he  is  barred;  but  that  he  need  not  show  a  possession  of 
twenty  complete  years,  or  of  any  other  number  of  years,  further 
than  is  necessary  to  constitute  a  full  and  peaceable  possession;  and 
that  this  being  merely  a  possessory  action  and  the  possession  to  be 
proved  not  being  intended  to  establish  the  ultimate  right,  and  not 
depending  for  its  validity  upon  the  manner  in  which  it  commenced, 
but  being  a  mere  matter  in  pais,  it  may  be  shown  as  well  with- 
out deed  as  with  it,  though,  when  without  it,  it  will  always  be 
looked  upon  with  greater  jealousy  and  be  overcome  with  great 
ease.     *     *     * 

Let  the  rule  for  a  new  trial  be  made  absolute. 


62  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

(2.)  For  the  Recovery   of  Damages  for  Wrongs  to  Property.     Trespass, 

Trover.  Waste. 

McGONIGLE  v.  ATCHISON. 

33  Kansas,  726.  —  1885. 

[Reported  herein  at  p.  65.] 


BABB  v.  PERLEY. 

1  Maine,  6.  —  1820. 
\Reported  herein  at  p.  27.] 


(3.)  For  the  Prevention  of  Threatened  Wrongs  to  Property. 
WATSON  v.  HUNTER. 

5  Johnson's  Chancery  (N.  Y.),  169.  —  1821. 

Suit  for  an  injunction  to  restrain  defendants,  lessees  for  a  term__ 
of  years,  from  cutting  down  any  more  timber,  and  from  removing 
that  already  cut  down  and  not  sawed  and  that  which  was  converted 
into  boards  or  plank.     Plaintiff  holds  the  fee  to  the  land  upon  cer- 
tain trusts. 

The  Chancellor.  —  Injunctions  to  the  extent  prayed  for  may 
have  been  granted;  but  as  I  am  not  satisfied  as  to  the  propriety  of 
such  extensive  and  summary  interference,  I  have  been  led  to  look 
into  the  course  of  the  English  authorities  and  practice  on  the  point. 
After  timber  is  cut,  it  ceases  to  be  part  of  the  realty,  and  is  con- 
verted into  personal  property,  and  trover  will  lie  for  it.  The  ques- 
tion is,  whether  this  court  ought  to  interfere,  in  the  first  instance,  to 
control  the  disposition  of  that  personal  property;  and  that,  too, 
without  any  special  or  extraordinary  necessity  stated  for  such 
interference. 

a  The  practice  of  granting  injunctions,  in  cases  of  waste,  is  to  pre- 
ent  or  stay  the  future  commission  of  waste;  and  the  remedy  for 
waste  already  committed  is  merely  incidental  to  the  jurisdiction  in 
the  oi  her  <  ase,  assumed  to  prevent  multiplicity  of  suits,  and  to  save 
the  party  the  necessity  of  resorting  to  trover  at  law.  Thus,  in  the 
of  fesus  College  v.  Bloom,  3  Atk.  262;  Ami).  54,  a  bill  was  filed 
fur  an  ai  1  ount  and  satisfaction  for  waste  in  cutting  down  trees,  and 


II.   8.]  MEANS   OF   VINDICATING    PROPERTY    RIGHTS.  63 

no  injunction  was  prayed  for,  and  the  tenant's  estate  had  been 
assigned  and  determined.  Lord  Hardwicke  held  that  the  bill  was 
improper,  and  would  not  lie  merely  for  satisfaction  for  timber  cut 
down,  and  that  an  action  of  trover  was  the  remedy.  Where  the  bill 
was  for  injunction  to  prevent  waste  and  for  waste  already  committed, 
the  court,  to  prevent  a  double  suit,  would  award  an  injunction  to 
prevent  future  waste,  and  decree  an  account  and  satisfaction  for 
what  was  past.  The  ground  for  coming  into  chancery  was  to  stay 
waste,  and  not  for  satisfaction  for  the  damages,  as  the  commission 
of  waste  was  a  tort  and  the  remedy  lay  at  law.  But  to  prevent 
multiplicity  of  suits,  the  court,  on  bills  for  injunction  to  stay  waste, 
and  where  waste  had  already  been  committed,  would  make  a  com- 
plete decree,  and  give  the  injured  party  a  satisfaction  for  what  had 
been  done,  and  not  put  him  to  another  action  at  law.  The  bill,  in 
that  case,  was  consequently  dismissed.  In  the  subsequent  case  of 
Smith  v.  Cooke,  3  Atk.  381,  Lord  Hardwicke  observed  that  if  the 
estate  of  the  lessee  was  determined,  and  he  had  quit,  a  party  could 
not  come  into  equity  merely  for  an  account  of  timber  cut  wrong- 
fully; but  where  he  continued  in  possession,  and  in  a  condition  to 
commit  more  waste,  the  party  might  come  into  equity  to  stay  future 
waste,  and  also  be  entitled  to  an  account  for  the  waste  committed. 
So,  again,  in  the  case  of  Lee  v.  Alston,  1  Ves.  Jr.  78,  the  same  doc- 
trine was  declared  by  Lord  Thurlow.  A  bill  was  filed  by  a  remain- 
derman in  fee  against  a  tenant  for  life,  for  an  account  of  timber 
cut,  and  for  an  injunction.  The  answer  admitted  the  cutting  of  the 
timber  wrongfully,  as  charged,  and  an  account  was  decreed.  It 
was  observed  that  the  plaintiff,  on  the  discovery  by  the  answer, 
might  have  resorted  to  trover  at  law,  but  he  was  not  obliged  to  do 
so,  and  might  have  an  account  under  the  admission  in  the  answer. 
The  chancellor  referred  to  the  case  of  Whitfield  v.  Bewit,  2  P.  Wms. 
240,  which  was  a  bill  for  an  injunction  to  stay  waste,  and  for  an 
account  of  timber  cut,  and  in  which  it  seemed  to  be  held  that  the 
right  to  the  timber  cut  might  be  pursued  in  chancery,  as  well  as  by 
trover  at  law. 

The  same  doctrine  was  declared  by  Lord  Hardwicke,  in  Grath  v. 
Cotton,  1  Ves.  528,  and  that  the  decree  for  an  account  of  the  waste 
already  committed  was  "  an  incident  "  to  the  injunction  to  stay 
waste.  It  would  seem,  then,  to  be  a  stretch  of  jurisdiction  to__apply^ 
the  injunction  to  this  incidental  remedy,  and  to  stay  the  use  or 
disposition  of  the  chatteT"This  would  be  enlarging  the  substituted 
remedy  in  this  court  much  beyond  the  remedy  at  law,  and  if  it  had 
been  the  established  English  practice,  we  should  not  have  been 
without    the    most   clear  and   explicit  cases   in   proof   of    it.     The 


64  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CII.  II. 

recovery  in  this  court  is  not  the  timber  itself,  in  specif,  but  damages 
for  the  value  of  it;  and  why  should  the  personal  chattel  be  bound  by 
injunction  in  this  case  more  than  in  any  other  case,  where  the 
remedy  is  for  a  tort  sounding  in  damages?  This  court  will  stay  the 
commission  of  waste,  or  the  transfer  of  negotiable  paper,  in  certain 
cases,  in  order  to  prevent  irreparable  mischief;  but  the  only  mis- 
l  chief  that  can  arise  in  the  present  case,  as  to  the  timber  already  cut  and 
'drawn  to  the  mills  of  the  defendant,  is  the  possible  inability  of  the 
'party  to  respond  in  damages.  That  is  a  danger  equally  applicable 
to  all  other  ordinary  demands,  and  it  is  not  an  impending  and  special 
mischief,  which  will  justify  this  extraordinary  preventive  remedy  by 
injunction.  If  the  injunction  could  be  ordinarily  applied  to  waste, 
already  committed,  I  apprehend  we  should  very  rarely  hear  of  a 
special  action  on  the  case,  in  the  nature  of  waste,  in  the  courts  of 
common  law. 

In  the  case  of  The  Bishop  of  London  v.  Webb,  i  P.  Wms.  527,  an 
injunction  was  called  for  against  a  lessee  for  years,  to  prevent 
digging  the  ground  for  brick,  as  it  was  destroying  the  field  and 
carrying  away  the  soil.  The  Lord  Chancellor  said:  "Let  the 
defendant  carry  off  the  brick  he  has  dug,  but  be  enjoined  from 
further  digging."  In  Packingtati  s  Case,  3  Atk.  213,  the  bill  stated, 
that  the  defendant  had  cut  down  a  great  number  of  trees,  and  had 
threatened  to  cut  down  and  destroy  them  all;  but  the  injunc- 
tion only  went  to  restrain  him  "  from  cutting  down  timber  trees 
growing." 

The  only  case  I  have  met  with,  applicable  to  the  very  point,  is  a 
very  loose  note  of  an  anonymous  case  of  1  Ves.  Jr.  93,  in  which  the 
solicitor-general  moved  for  an  order  to  prevent  the  removal  of 
timber  wrongfully  cut  down.  In  what  stage  of  the  cause,  or  upon 
what  state  of  pleadings  and  proofs,  this  motion  was  made,  does  not 
appear.  Lord  Thurlow  is  said  to  have  observed:  "  I  have  no  doubt 
about  the  interference  of  this  court  to  prevent  waste.  The  only 
difficulty  I  have  is  as  to  what  shall  be  done  with  the  timber  cut. 
Trover  might  be  brought  for  it;  but,  as  the  register  says  many  orders 
of  this  kind  have  been  made,  take  the  order." 

Such  a  case  is  not  a  sufficient  authority  to  extend  the  injunction 
to  the  timber  already  cut.  There  must  be  a  very  special  case  made 
Din  to  author: /.i-  me  to  go  so  far,  and  such  cases  may  be  supposed. 
A  lease,  for  instam  e,  may  have  been  fraudulently  procured  by  an 
Insolvent  person,  (<>v  the  very  purpose  of  plundering  the  timber 
under  the  shelter  of  it.  Perhaps,  in  that  and  like  cases,  where  the 
hief  would  be  irreparable,  it  might  be  necessary  to  interfere  in 
tins  extraordinary  way,  and  prevent  the  removal  of  the  timber.    I  do 


II.  8.]  MEANS   OF   VINDICATING   PROPERTY    RIGHTS.  65 

not  mean  to  be  understood  to  say  that  the  court  will  never  inter- 
fere, but  that  it  ought  not  to  be  done  in  ordinary  cases  like  the 
present.  I  shall  accordingly  confine  the  injunction  to  the  timber 
standing  or  growing  at  the  time  of  the  service  of  the  process. 

Order  accordingly. 


b.    Where  the  action  must  be  brought. 

McGONIGLE  v.  ATCHISON. 
33  Kansas,  726.  —  1885, 

Valentine,  J.  — This  case  has  been  brought  to  this  court  upon 
a  "  case-made,"  which  is  a  model  of  brevity  and  clearness,  and 
reflects  great  credit  upon  the  able  counsel  who  prepared  it.  The 
case  has  also  been  very  ably  presented  to  this  court  by  counsel  on 
both  sides,  and  if  we  should  err  in  its  decision,  it  will  not  be  their 
fault.  The  amount  involved  in  this  controversy  seems  to  be  small 
and  trifling,  but  the  principles  involved  are  supposed  to  be  of  vital 
importance,  and  counsel  for  plaintiff  in  error,  defendant  below,  says 
that  the  decision  of  the  case  involves  the  possible  liability  for  not 
only  many  dollars,  but  many  hundreds  of  thousands  of  dollars.  We 
have,  therefore,  given  the  case  a  very  careful  consideration. 

The  record  of  the  case,  as  presented  to  this  court,  shows  that  on 
October  4,  1883,  David  Atchison  filed  his  petition  in  the  District 
Court  of  Leavenworth  county,  in  which  petition  he  alleged,  among 
other  things,  that  he  was  then  and  had  been  for  more  than  five  years 
the  legal  and  equitable  owner  of  a  certain  piece  of  land,  describing 
it,  situated  in  Platte  county,  State  of  Missouri,  and  being  on  what 
is  commonly  known  as  "  Leavenworth  Island;  "  that  the  defendant, 
George  McGonigle,  did,  on  or  about  March  1,  1883,  unlawfully  and 
wrongfully  enter  upon  said  premises  and  dig  sand  thereon,  and 
remove,  take  and  carry  away  to  the  city  of  Leavenworth,  and  con- 
vert and  appropriate  the  same  to  his  own  use,  to  wit,  200,000 
bushels,  of  the  value  of  one  cent  per  bushel,  to  the  damage  of  the 
plaintiff  in  the  sum  of  $2,000,  and  prayed  judgment  for  the  sum  of 
$2,000  and  costs.  To  this  petition  the  defendant  answered,  the 
answer  being  a  general  denial.  Upon  the  issues  as  thus  made,  the 
cause  came  on  for  trial  before  the  court  and  a  jury;  whereupon 
the  defendant  objected  to  the  introduction  of  any  testimony,  upon 
the  ground  that  the  petition  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action  of  which  the  District  Court  had  jurisdiction.  This 
objection  was  overruled  by  the  court,  and  the  trial  proceeded,  and 

LAW  OF  PROP.    IN  LAND  —  5 


66  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

resulted  in  a  verdict  of  $i  for  the  plaintiff.  The  defendant  moved 
for  a  new  trial  upon  the  ground  of  error  of  law  occurring  at  the  trial 
and  duly  excepted  to,  which  motion  was  overruled,  and  the  defend- 
ant excepted.  Judgment  was  then  rendered  in  favor  of  the  plaintiff 
and  against  the  defendant  for  $i  and  costs,  to  which  judgment  the 
defendant  excepted,  and  now  brings  the  case  to  this  court  for 
review. 

Counsel  for  plaintiff  in  error,  defendant  below,  states  in  his  brief 
that  the  question  involved  in  this  case  is  as  follows:  "  Is  this  a 
local  or  a  transitory  action?  Is  it  trespass  quare  clausum  f regit,  or 
trespass  de  bonis  asporlatis?  "  We  think  the  question  may  be  more 
properly  stated  as  follows:  Do  the  facts  of  this  case  show  a  cause 
of  action  that  is  transitory,  or  one  that  is  purely  local?  Or,  in  other 
words,  do  the  facts  of  this  case  show  a  cause  of  action  in  the  nature 
of  trespass  de  bonis  asportatis,  or  trover,  on  the  one  side,  or  trespass 
quare  clausum /regit,  on  the  other  side?  If  the  facts  show  a  cause 
of  action  in  the  nature  of  trespass  de  bonis  asportatis,  or  trover,  then 
the  action  is  certainly  transitory;  but  if  they  show  only  a  cause  of 
action  in  the  nature  of  trespass  quare  clausum  f regit,  then  the  action 
is  admittedly  local.  The  distinction  between  transitory  and  local 
actions,  both  at  common  law  and  under  the  code,  is  generally  and 
substantially  as  follows:  If  the  cause  of  action  is  one  that  might 
have  arisen  anywhere,  then  it  is  transitory;  but  if  it  is  one  that 
could  only  have  arisen  in  one  place,  then  it  is  local.  Hence,  actions 
for  injuries  to  real  estate  are  generally  local,  and  can  be  brought 
only  where  the  real  estate  is  situated;  while  actions  for  injuries  to 
persons  or  to  personal  property,  or  relating  thereto,  are  generally 
transitory,  and  may  be  brought  in  any  county  where  the  wrongdoer 
may  be  found.  These  propositions,  we  suppose,  are  conceded.  But 
the  real  contention  between  the  parties  to  this  action  is,  whether 
the  real  and  substantial  grievance  set  forth  by  the  plaintiff  as  the 
foundation  for  his  action  is  one  which  relates  merely  to  real  estate, 
or  one  which  may  be  considered  as  fairly  relating  to  personal  prop- 
erty. The  petition  states  wrongs  relating  both  to  real  estate  and  to 
personal  property.  It  states  that  the  defendant  unlawfully  and 
wrongfully  entered  upon  the  plaintiff's  premises,  in  Missouri,  and 
dug  sand  thereon.  This,  of  course,  was  a  wrong  relating  to  real 
estate  only;  but  the  petition  also  states  that  after  the  sand  was 
severed  from  the  real  estate  the  defendant  then  removed  the  same 
to  Leavenworth  city,  Kansas,  and  there  converted  and  appropriated 
the  same  to  his  own  use;  and  these  last-mentioned  wrongs  certainly 
relate  to  personal  property  only;  for  as  soon  as  the  sand  was  severed 
from  the  real  estate  it  became  personal  property. 


II.  8.]  MEANS   OF   VINDICATING   PROPERTY    RIGHTS.  67 

This  principle,  of  things  becoming  personal  property  when  severed 
from  the  realty,  is  universally  recognized  by  all  courts  and  by  all 
law-writers.  Besides,  the  plaintiff  in  this  case,  after  alleging  the 
above-mentioned  wrongs,  then  asks  for  damages  only  for  the  wrong- 
ful conversion  of  the  sand,  which  was  personal  property,  and  does 
not  ask  for  damages  for  injuries  done  to  his  real  estate.  He  seems 
to  waive  all  the  wrongs  and  injuries  done  with  reference  to  his  real 
estate  and  to  his  possession  thereof,  provided  the  digging  and  the 
removal  of  the  sand  was  any  injury  to  either,  and  sues  only  for  the 
value  of  the  sand  which  was  converted.  We  think  it  is  true,  as  is 
claimed  by  the  defendant,  that  the  petition  states  facts  sufficient  to 
constitute  a  cause  of  action  in  the  nature  of  trespass  quare  clausum 
/regit;  but  it  also  states  facts  sufficient  to  constitute  a  cause  of 
action  in  the  nature  of  trespass  de  bonis  asportatis  and  of  trover;  and 
we  think  the  plaintiff  may  recover  upon  either  of  these  latter  causes 
of  action,  for  they  are  unquestionably  transitory;  although  it  must 
be  conceded  that  he  cannot  recover  upon  the  former  cause  of  action, 
for  it  is  admittedly  local  in  its  character,  and  because  the  plaintiff 
has  brought  his  action  in  a  jurisdiction  foreign  to  the  one  where  this 
local  cause  of  action  arose.  But  as  the  plaintiff  asks  no  relief  per- 
taining specially  to  the  local  cause  of  action,  but  only  such  as  may 
be  given  upon  the  facts  of  the  transitory  cause  of  action,  we  think 
he  may  recover. 

All  the  old  forms  of  action  are  abolished  in  Kansas.  We  now  have 
no  action  of  trespass  quare  clausum  f regit,  nor  of  trespass  de  bonis 
asportatis,  nor  of  trover;  but  only  one  form  of  action,  called  a  civil 
action.  (Civil  Code,  sec.  10.)  And  under  such  form  of  action  all 
civil  actions  must  be  prosecuted;  and  all  that  is  necessary  in  order 
to  state  a  good  cause  of  action  under  this  form  is  to  state  the  facts 
of  the  case  in  ordinary  and  concise  language,  without  repetition. 
(Civil  Code,  sec.  87.)  And  when  the  plaintiff  has  stated  the  facts 
of  his  case,  he  will  be  entitled  to  recover  thereon  just  what  such 
fact  will  authorize.  Fitzpatrick  v.  Geb/iart,  7  Kans.  42,  43;  Kunz 
v.  Ward,  28  Id.  132.  We  now  look  to  the  substance  of  things,  and 
not  merely  to  forms  and  fictions.  If  the  facts  stated  by  the  plain- 
tiff would  authorize  a  recovery  under  any  of  the  old  forms  of  action, 
he  will  still  be  entitled  to  recover,  provided  he  proves  the  facts. 
If  the  facts  stated  would  authorize  one  or  two  or  more  kinds 
of  relief,  he  may  then  elect  as  to  which  kind  of  relief  he  will  obtain; 
and  the  prayer  of  his  petition  will  generally  indicate  his  election. 
And  if  one  kind  of  relief  is  beyond  the  jurisdiction  of  the  court,  and 
the  other  within  such  jurisdiction,  the  plaintiff  may  elect  to  receive 
that  kind  of  relief  which  is  within  the  jurisdiction  of  the  court. 


68  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

We  think  the  plaintiff  may  maintain  his  present  action  as  an  action 
in  the  nature  of  trespass  de  bonis  asportatis,  or  trover  When  the 
sand  was  severed  from  the  real  estate  it  became  personal  property, 
but  the  title  to  the  same  was  not  changed  or  transferred.  It  still 
remained  in  the  plaintiff.  He  still  owned  the  sand,  and  had  the 
right  to  follow  it  and  reclaim  it,  in  to  whatever  jurisdiction  it  might 
be  taken.  He  could  recover  it  in  an'action  of  replevin,  Richardson 
v.  York,  14  Me.  216;  Harlan  v.  Harlan,  15  Pa.  St.  507;  Halleck  v. 
Mixer,  16  Cal.  574.  Or  he  could  maintain  an  action  in  the  nature 
of  trespass  de  bonis  asportatis,  for  damages  for  its  unlawful  removal, 
Wadleigh  v.  Janvrin,  41  N.  H.  503,  520;  Bulkley  v.  Dolbeare,  7  Conn. 
232;  or  he  could  maintain  an  action  in  the  nature  of  trover  for  dam- 
ages for  its  conversion,  if  it  were  in  fact  converted,  Tyson  v. 
McGuineas,  25  Wis.  656;  Whidden  v.  Seelye,  40  Me.  247,  255,  256; 
Riley  v.  Boston  W.  P.  Co.,  65  Mass.  11;  Nelson  v.  Burt,  15  Mass. 
204;  Forsythv.  Wells,  41  Pa  St.  291;  Wright  v.  Guier,  9  Watts,  172; 
Mooers  v.  Wait,  3  Wend.  104;  or  he  could  maintain  an  action  in  the 
nature  of  assumpsit,  for  damages  for  money  had  and  received,  if  the 
trespasser  sold  the  property  and  received  money  therefor,  Powell  v. 
Rees,  7  Ad.  &  L.  426;  Whidden  v.  Seelye,  40  Me.  255;  Halleck  v. 
Mixer,  16  Cal.  574;  see  also  in  this  connection  the  case  of  Fanson 
v.  Linsley,  20  Kans.  235. 

In  all  cases  of  wrong,  the  tort  or  a  portion  thereof  may  be  waived 
by  the  party  injured,  and  he  may  recover  on  the  remaining  portion 
of  the  tort  or  on  an  implied  contract,  provided  the  remaining  facts 
will  authorize  such  a  recovery.  Mr.  Waterman,  in  his  work  on  Tres- 
pass, uses  the  following  language: 

"  Section  1102.  Although  as  standing  trees  are  part  of  the  inheri- 
tance and  the  severing  them  from  it  is  deemed  an  injury  to  the 
freehold,  for  which  trespass  quare  clausum  f  regit  \%  the  appropriate 
remedy,  yet  the  party  may  waive  that  ground  of  recovery,  and  claim 
the  value  of  the  timber  only  thus  severed  and  carried  awaj\  In  the 
one  case,  the  entering  and  breaking  of  the  close  is  the  gist  of  the 
action;  in  the  other,  the  taking  and  carrying  away  of  the  property. 
In  the  latter  case,  the  action  is  transitory,  and  not  local."  See  also 
Nelson  v.  Burt,  15  Mass.  204;  Halleck  v.  Mixer,  16  Cal.  574. 

The  plaintiff  in  error,  defendant  below,  has  cited  a  large  number 
of  authorities,  but  under  our  code  of  practice  and  procedure  they 
hardly  apply  to  the  facts  of  this  case.  Those  nearest  applicable  are 
the  following:  Am.  Un.  Tel.  Co.  v.  Middleton,  80  N.  Y.  408;  Frost 
v.  Duncan,  19  Barb.  560;  Howe  v.  Wilson,  1  Denio,  181;  Sturgis  v. 
Warren,  11  Vt.  433;  Baker  v.  Howell,  6  Serg.  &  R.  476;  Powell  v. 
Smith,  2  Watts,  126;   Uttendorjfer  v.  Saegers,  50  Cal.  496.     The  case 


II.  8.]  MEANS   OF   VINDICATING    PROPERTY    RIGHTS.  69 

of  The  Telegraph  Company  v.  Middleton,  supra,  was  where  the  defend- 
ant committed  a  trespass  by  cutting  down  telegraph  poles  in  a  high- 
way, and  throwing  them  in  the  ditches  and  on  the  fences  on  the 
sides  of  the  highway,  and  leaving  them  there.  There  was  no  aspor- 
tation from  the  premises,  no  conversion,  and  no  intended  asportation 
or  conversion;  and  the  court  held  that  the  action  was,  therefore, 
trespass  quare  clausum  f regit,  and  not  trover,  and  that  the  action 
was,  therefore,  local  in  its  character  and  not  transitory.  The  case 
of  Frost  v.  Duncan,  supra,  was  not  decided  by  a  court  of  last  resort; 
and  the  main  question  decided  was  that  two  causes  of  action  were 
improperly  joined  in  one  count.  Besides,  in  that  case  the  defend- 
ants were  in  the  actual  possession  of  the  land,  claiming  the  same  as 
their  own  under  a  deed.  The  next  four  cases  were  not  decided 
under  any  reformed  code  of  procedure,  and  we  do  not  think  that 
the  seventh  and  last  case  cited  conflicts  with  the  views  that  we  have 
expressed.  The  fact  that  the  question  of  title  to  real  estate  was 
incidentally  raised  in  this  case  makes  no  difference.  See  the  cases 
heretofore  cited,  and  especially  Harlcn  v.  Harlen,  15  Pa.  St.  507; 
Halleck  v.  Mixer,  16  Cal.  574.  The  plaintiff  was  in  possession, 
claiming  to  own  the  property,  while  the  defendant  was  a  mere  wrong- 
doer, with  no  claim  of  interest  in  the  land. 

We  have  so  far  considered  this  case  as  though  it  made  no  differ- 
ence whether  the  sand  was  severed  from  the  real  estate  and  carried 
away  by  one  act  only,  or  by  two  or  more;  nor  do  we  think  that  it 
can  make  any  difference.  Under  any  circumstances,  the  sand 
remains  the  property  of  the  owner  of  the  land  until  he  chooses  to 
abandon  the  same.  We  suppose  that  if  the  sand  were  severed  from 
the  real  estate  by  one  act,  and  then  carried  away  by  another,  this 
proposition  would  not  be  questioned,  and  probably  it  will  not  be 
questioned  even  if  the  sand  was  severed  and  carried  away  by  a  single 
act;  and  if  the  sand  remains  the  property  of  the  owner  of  the  real 
estate,  as  we  think  it  does,  there  can  be  no  good  reason  why  he 
should  not  be  entitled  to  all  the  remedies  for  its  recovery,  or  for 
loss  or  damages  for  its  injury,  or  detention  or  conversion,  which  he 
might  have  with  respect  to  any  other  personal  property. 

The  judgment  of  the  court  below  will  be  affirmed. 


yo  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

III.  Interests  in  things  the  subject  of  property  may  change  from  real 
to  personal,  and  vice  versa. 

i.   In  View  of  a  Court  of  Law. 

McGONIGLE  v.  ATCHISON. 

33  Kansas,  726.  —  1885. 

[Reported  herein  at  p.  65.] 


RICKETTS  v.  DORREL. 

55  Indiana,  470.  —  1876. 
[Reported  herein  at  p.  5 1.] 

2.  In  View  of  a  Court  of  Equity. 
MARCH  v.  BERRIER. 

6  Iredell's  Equity  (N.  C),  524.  —  1850. 

Sarah  Ann  Wilson,  an  infant,  inherited  several  tracts  of  land 
from  her  father.  By  due  process  of  law  one  tract  was  sold  for  the 
purpose  of  procuring  money  to  pay  decedent's  debts;  the  surplus 
of  the  proceeds  of  the  sale  was  paid  to  defendant,  Perry,  as  guardian 
of  the  infant.  Sarah  Ann  died  intestate,  while  still  an  infant,  leav- 
ing no  issue,  parent,  brother  or  sister,  but  leaving  a  grandmother, 
who  is  her  next  of  kin,  and  certain  paternal  uncles  and  aunts  who  are 
her  heirs-at-law.  The  heirs-at-law  bring  this  bill  against  the  guardian 
and  against  Berrier,  the  grandmother's  husband,  who  claims  the 
fund  as  personalty,  in  right  of  his  wife. 

Ruffin,  C.  J.  — When  a  court  of  equity  orders  a  sale  of  the  real 
estate  of  an  infant,  in  order  to  raise  money  for  a  particular  purpose, 
it  would  not,  upon  its  own  principles  and  independent  of  any  pro- 
vision by  statute,  allow  its  decree  to  affect  the  right  of  succession  to 
a  surplus  remaining  after  answering  that  purpose.  The  money 
Stands  for  tin:  land,  of  which  it  was  the  proceeds.  That  principle, 
however,  has  been  rendered  yet  more  obligatory  by  the  legislative 
i  [MM  in  the  arts  of  1 S r  2 ,  1818,  and  1S27.  Rev.  Stat.  ch.  54,  sees. 
26,  27,  and  ch.  85,  sees.  7,  8.  Accordingly,  it  has  been  held  that, 
when  the  owner  died  without  having  capacity  to  dispose  of  the  fund, 


III.   2.]    CHANGE  FROM  REAL  TO  PERSONAL  AND  REVERSE.  yi 

it  was  to  be  regarded  as  land,  in  respect  to  the  right  of  succession. 
Scull  v.  Jernigan,  2  Dev.  &  Bat.  Eq.  144;  Gillespie  v.  Foy,  5  Ired. 
Eq.  280.  Those  cases  show  also,  that  the  receipt  of  the  money  by 
the  infant's  guardian  makes  no  difference.  The  acts  of  that  person, 
or  the  dealings  between  him  and  the  infant's  administrator,  cannot 
change  the  equitable  nature  of  the  fund,  so  as  to  disturb  the  rights 
of  the  heir-at-law.  The  interest,  indeed,  which  accrued  during  the 
infant's  life,  is  personalty,  as  the  profits  of  the  land  during  that 
period  would  have  been.  But  the  capital  and  the  interest  thereon 
since  her  death  belong  to  the  heirs-at-law. 

Decree  accordingly. 


CRAIG  v.  LESLIE. 

3  Wheaton  (U.  S.),  563.  —  1818. 

Mr.  Justice  Washington  delivered  the  opinion  of  Court.  — The 
incapacity  of  an  alien  to  take,  and  to  hold  beneficially,  a  legal  or 
equitable  estate  in  real  property,  is  not  disputed  by  the  counsel  for 
the  plaintiff;  and  it  is  admitted  by  the  counsel  for  the  State  of 
Virginia,  that  this  incapacity  does  not  extend  to  personal  estate. 
The  only  inquiry,  then,  which  this  court  has  to  make  is  whether  the 
above  clause  in  the  will  of  Robert  Craig  is  to  be  construed,  under 
all  the  circumstances  of  this  case  as  a  bequest  to  Thomas  Craig  of 
personal  property,  or  as  a  devise  of  the  land  itself? 

Were  this  a  new  question,  it  would  seem  extremely  difficult  to 
raise  a  doubt  respecting  it.  The  common  sense  of  mankind  would 
determine,  that  a  devise  of  money,  the  proceeds  of  land  directed  to 
be  sold,  is  a  devise  of  money,  notwithstanding  it  is  to  arise  out  of 
land;  and  that  a  devise  of  land,  which  a  testator  by  his  will  directs 
to  be  purchased,  will  pass  an  interest  in  the  land  itself,  without 
regard  to  the  character  of  the  fund  out  of  which  the  purchase  is  to 
be  made. 

The  settled  doctrine  of  the  courts  of  equity  correspond  with  this 
obvious  construction  of  wills,  as  well  as  of  other  instruments, 
whereby  land  is  directed  to  be  turned  into  money,  or  money  into 
land,  for  the  benefit  of  those  for  whose  use  the  conversion  is 
intended  to  be  made.  In  the  case  of  Fletcher  v.  Ashburner,  1  Bro. 
Ch.  Cas.  497,  the  master  of  the  rolls  says,  that  "  nothing  is  better 
established  than  this  principle,  that  money  directed  to  be  employed 
in  the  purchase  of  land,  and  land  directed  to  be  sold  and  turned  into 
money,  are   to  be  considered  as  that  species  of  property  into  which 


72  REAL  AND  PERSONAL  PROPERTY.   [PT.  I.  CH.  II. 

they  are  directed  to  be  converted,  and  this,  in  whatever  manner  the 
direction  is  given."  He  adds,  "  the  owner  of  the  fund,  or  the  con- 
tracting parties,  may  make  land  money,  or  money  land.  The  cases 
establish  this  rule  universally."  This  declaration  is  well  warranted 
by  the  cases  to  which  the  master  of  the  rolls  refers,  as  well  as  by 
many  others.  See  Dougherty  v.  Bull,  2  P.  Wms.  320;  Yeates  v. 
Compton,  Id.  358;    Trelawney  v.  Booth,  2  Atk.  307. 

The  principle  upon  which  the  whole  of  this  doctrine  is  founded  is, 
that  a  court  of  equity,  regarding  the  substance,  and  not  the  mere 
forms  and  circumstances  of  agreements  and  other  instruments,  con- 
sider things  directed  or  agreed  to  be  done  as  having  been  actually 
performed,  where  nothing  has  intervened  which  ought  to  prevent  a 
performance.  This  qualification  of  the  more  concise  and  general 
rule,  that  equity  considers  that  to  be  done  which  is  agreed  to  be 
done,  will  comprehend  the  cases  which  come  under  this  head  of 
equity. 

Thus,  where  the  whole  beneficial  interest  in  the  money  in  the  one 
case,  or  in  the  land  in  the  other,  belongs  to  the  person  for  whose 
use  it  is  given,  a  court  of  equity  will  not  compel  the  trustee  to  exe- 
cute the  trust  against  the  wishes  of  the  cestui  que  trust,  but  will  per- 
mit him  to  take  the  money  or  the  land,  if  he  elect  to  do  so  before 
the  conversion  has  actually  been  made;  and  this  election  he  may 
make,  as  well  by  acts  or  declarations  clearly  indicating  a  determina- 
tion to  that  effect,  as  by  application  to  a  court  of  equity.  It  is  this 
election,  and  not  the  mere  right  to  make  it,  which  changes  the 
character  of  the  estate  so  as  to  make  it  real  or  personal,  at  the  will 
of  the  party  entitled  to  the  beneficial  interest. 

If  this  election  be  not  made  in  time  to  stamp  the  property  with  a 
character  different  from  that  which  the  will  or  other  instrument  gives 
it,  the  latter  accompanies  it,  with  all  its  legal  consequences,  into 
the  hands  of  those  entitled  to  it  in  that  character.  So  that  in  case 
of  the  death  of  the  cestui  que  trust,  without  having  determined  his 
election,  the  property  will  pass  to  his  heirs  or  personal  representa- 
tives, in  the  same  manner  as  it  would  have  done  had  the  trust  been 
executed,  and  the  conversion  actually  made  in  his  lifetime. 

In  the  case  of  Kirkman  v.  Mills,  13  Ves.,  which  was  a  devise  of 
real  estate  to  trustees  upon  trust  to  sell,  and  the  moneys  arising, 
as  well  as  the  rents  and  profits  till  the  sale,  to  be  equally  divided 
between  the  testator's  three  daughters,  A.,  B.  and  C.  The  estate 
.  upon  the  death  of  A.,  B.  and  C,  considered  and  treated  as 
personal  property,  notwithstanding  the  cestui  que  trusts,  after  the 
death  of  the  testator,  had  entered  upon,  ami  occupied  the  land  for 
about  two  years  prior  to  their  deaths;  but  no  steps  had  been  taken 


III.  2.]    CHANGE  FROM  REAL  TO  PERSONAL  AND  REVERSE.  73 

by  them,  or  by  the  trustees,  to  sell,  nor  had  any  requisition  to  that 
effect  been  made  by  the  former  to  the  latter.  The  master  of  the 
rolls  was  of  opinion,  that  the  occupation  of  the  land  for  two  years 
was  too  short  to  presume  an  election.  He  adds,  "  the  opinion  of 
Lord  Rosslyn,  that  property  was  to  be  taken  as  it  happened  to  be 
at  the  death  of  the  party  from  whom  the  representative  claims,  had 
been  much  doubted  by  Lord  Eldon,  who  held  that  without  some 
act,  it  must  be  considered  as  being  in  the  state  in  which  it  ought 
to  be;  and  that  Lord  Rosslyn's  rule  was  new,  and  not  according  to 
the  prior  cases. 

The  same  doctrine  is  laid  down  and  maintained  in  the  case  of 
Edwards  v.  The  Countess  of  Warwick,  2  P.  Wms.  171,  which  was  a 
covenant  on  marriage  to  invest  ^10,000,  part  of  the  lady's  fortune, 
in  the  purchase  of  land  in  fee,  to  be  settled  on  the  husband  for  life, 
remainder  to  his  first  and  every  other  son  in  tail  male,  remainder 
to  the  husband  in  fee.  The  only  son  of  his  marriage  having  died 
without  issue,  and  intestate,  and  the  investment  of  the  money  not 
having  been  made  during  his  life,  the  chancellor  decided  that  the 
money  passed  to  the  heir-at-law;  that  it  was  in  the  election  of  the 
son  to  have  made  this  money,  or  to  have  disposed  of  it  as  such,  and 
that,  therefore,  even  his  parol  disposition  of  it  would  have  been 
regarded;  but  that  something  to  determine  the  election  must  be 
done. 

This  doctrine,  so  well  established  by  the  cases  which  have  been 
referred  to,  and  by  many  others  which  it  is  unnecessary  to  mention, 
seems  to  be  conclusive  upon  the  question  which  this  court  is  called 
upon  to  decide,  and  would  render  any  further  investigation  of  it 
useless,  were  it  not  tor  the  case  of  Roper  v.  Radcliff,  which  was  cited, 
and  mainly  relied  upon  by  the  counsel  for  the  State  of  Virginia. 
[  The  discussion  of  this  case  is  omitted.  The  court  disapprove  of  it  and 
decide  further  that  it  is  not  an  authority  in  point.  ] 

As  to  the  idea  that  the  character  of  the  estate  is  affected  by  this 
right  of  election,  whether  the  right  be  claimed  or  not,  it  appears  to 
be  as  repugnant  to  reason,  as  we  think  it  has  been  shown  to  be,  to 
principle  and  authorities.  Before  anything  can  be  made  of  the 
proposition,  it  should  be  shown  that  this  right  or  privilege  of  election 
is  so  indissolubly  united  with  the  devise  as  to  consitute  a  part  of  it, 
and  that  it  may  be  exercised  in  all  cases,  and  under  all  circum- 
stances. This  was,  indeed,  contended  for  with  great  ingenuity  and 
abilities  by  the  counsel  for  the  State  of  Virginia,  but  it  was  not 
proved  to  the  satisfaction  of  the  court. 

It  certainly  is  not  true  that  equity  will  extend  this  privilege  in 
all  cases  to  the  cestui  que  trust.     It  will  be  refused  if  he  be  an  infant. 


74  REAL   AND    PERSONAL   PROPERTY.      [PT.  I.  CH.  II. 

In  the  case  of  Seeley  v.  /ago,  i  P.  Wms.  389,  where  money  was 
devised  to  be  laid  out  in  land  in  fee,  to  be  settled  on  A.,  B.  and  C, 
and  their  heirs,  equally  to  be  divided:  on  the  death  of  A.,  his 
infant  heir,  together  with  B.  and  C,  filed  their  bill  claiming  to  have 
the  money,  which  was  decreed  accordingly  as  to  B.  and  C. ;  but  the 
share  of  the  infant  was  ordered  to  be  put  out  for  his  benefit,  and 
the  reason  assigned  was,  that  he  was  incapable  of  making  an  election, 
and  that  such  election,  if  permitted,  would,  in  case  of  his  death,  be 
prejudicial  to  his  heir. 

In  the  case  of  Foon  v.  Bloant,  Cowp,  467,  Lord  Mansfield,  who  is 
compelled  to  acknowledge  the  authority  of  Roper  v.  Radcliffe  in 
parallel  cases,  combats  the  reasoning  of  Chief  Justice  Parker  upon 
this  doctrine  of  election,  with  irresistible  force.  He  suggests,  as 
the  true  answer  to  it,  that  though  in  a  variety  of  cases  this  right 
exists,  yet  it  was  inapplicable  to  the  case  of  a  person  who  was  dis- 
abled by  law  from  taking  land,  and  that,  therefore,  a  court  of  equity 
would,  in  such  a  case,  decree  that  he  should  take  the  property  as 
money. 

The  case  of  Walker  v.  Denne,  2  Ves.  Jr.  170,  seems  to  apply  with 
great  force  to  this  part  of  our  subject.  The  testator  directed  money 
to  be  laid  out  in  lands,  tenements,  and  hereditaments,  or  on  long 
terms,  with  limitations  applicable  to  real  estate.  The  money  not 
having  been  laid  out,  the  crown,  on  failure  of  heirs,  claimed  the 
money  as  land.  It  was  decided  that  the  crown  had  no  equity  against 
the  next  of  kin  to  have  the  money  laid  out  in  real  estate  in  order 
to  claim  it  by  escheat.  It  was  added,  that  the  devisees,  on  becom- 
ing absolutely  entitled,  have  the  option  given  by  the  will;  and  a 
deed  of  appointment  by  one  of  the  cestui  que  trusts,  though  a.  feme 
covert,  was  held  a  sufficient  indication  of  her  intention  that  it  should 
continue  personal  against  her  heir,  claiming  it  as  ineffectually  dis- 
posed of  for  want  of  her  examination.  This  case  is  peculiarly  strong, 
from  the  circumstance  that  the  election  is  embodied  in  the  devise 
itself;  but  this  was  not  enough,  because  the  crown  had  no  equity  to 
force  an  election  to  be  made  for  the  purpose  of  producing  an  escheat. 

Equity  would  surely  proceed  contrary  to  its  regular  course,  and 
the  principles  which  universally  govern  it,  to  allow  the  right  of 
election  where  it  is  desired,  and  can  be  lawfully  made,  and  yet  refuse 
0  decree  the  money  upon  the  application  of  the  alien,  upon  no 
other  reason,  but  because,  by  law,  he  is  incapable  to  hold  the  land: 
\w  short,  to  consider  him  in  the  same  situation  as  if  he  had  made  an 
'ion,  which  would  have  been  refused  had  he  asked  for  a  con- 
veyani  e.  The  more  just  and  correct  rule  would  seem  to  be,  that 
where  the  cestui  que  trust  is  incapable  to  take  or  to  hold  the  land 


III.   2.]    CHANGE  FROM  REAL  TO  PERSONAL  AND  REVERSE.  75 

beneficially,  the  right  of  election  does  not  exist,  and,  consequently, 
that  the  property  is  to  be  considered  as  being  of  that  species  into 
which  it  is  directed  to  be  converted.  [Some  further  discussion  of 
Roper  v.  Radcliff  is  omitted  here. ,] 

Now,  what  is  the  situation  of  an  alien?  He  can  not  only  take  an 
interest  in  land,  but  a  freehold  interest  in  the  land  itself,  and  may 
hold  it  against  all  the  world  but  the  king,  and  even  against  him  until 
office  found,  and  he  is  not  accountable  for  the  rents  and  profits  pre- 
viously received.  Vide  Jackson  ex  dem.  State  of  New  York  v.  Clarke, 
3  Wheat.  12,  n.  c.  In  this  case  the  will  being  valid,  and  the  alien 
capable  of  taking  under  it,  there  can  be  no  resulting  trust  to  the 
heir,  and  the  claim  of  the  State  is  founded  solely  upon  a  supposed 
equity,  to  have  the  land  by  escheat,  as  if  the  alien  had,  or  could, 
upon  the  principles  of  a  court  of  equity,  have  elected  to  take  the 
land  instead  of  the  money.     *     *     * 

Upon  the  whole,  we  are  unanimously  of  opinion  that  the  legacy 
given  to  Thomas  Craig,  in  the  will  of  Robert  Craig,  is  to  be  con- 
sidered as  a  bequest  of  personal  estate,  which  he  is  capable  of  taking 
for  his  own  benefit. 

Certificate  accordingly. 


CHAPTER  III. 
Corporeal  and  Incorporeal  Property  in  Land. 

HUFF  v.  McCAULEY. 

53  Pennsylvania  State  206.  —  18S6. 

Strong,  J.  — In  the  court  below  the  defendants  relied  for  their 
defense  upon  an  arrangement  alleged  by  them  to  have  been  made 
between  the  plaintiff,  McCauley,  and  George  Huff,  by  which  the 
latter  was  authorized  to  take  as  much  coal  from  McCauley's  land  as 
he  wanted  for  the  use  of  his  salt-works,  and  to  take  it  as  long  as  he 
wished,  in  consideration  of  his  agreement  that  McCauley  might  use 
his  drift  and  scaffold  to  take  out  coal  for  himself.  Under  the 
instructions  given  to  the  jury,  they  must  have  found  either  that  no 
such  arrangement  had  been  made,  or,  that  if  it  had,  Huff  had  made 
no  expenditure  upon  the  faith  of  it.  To  which  of  these  conclusions 
they  came  it  is  impossible  to  tell.  If  there  had  been  no  such  arrange- 
ments made,  what  the  court  declared  would  have  been  its  legal  effect, 
if  made,  is  of  no  importance.  The  jury  may,  however,  have  found 
that  the  parties  had  entered  into  such  mutual  agreements;  but  that 
Huff  had  made  no  expenditure  of  money  in  reliance  upon  them,  and 
hence  that  he  was  not  in  a  condition  to  set  up  an  estoppel  in  pais 
against  the  plaintiff.  It  becomes  necessary,  therefore,  to  consider, 
whether  the  defendants  were  injured  by  the  instruction  given  to 
the  jury,  respecting  the  rights  of  the  parties  to  such  an  arrangement. 
It  was  a  case  of  verbal  agreement,  and  the  charge  of  the  court  was, 
in  effect,  that  if  made,  it  was  a  revocable  license  and  no  more.  In 
tins  it  is  insisted  there  was  error,  and  it  is  argued  that  there  having 
been  a  consideration  given  for  the  privilege  accorded  to  Huff,  in  the 
allowance  to  McCauley  to  use  Huff's  drift  and  scaffold,  that  which 
otherwise  might  have  been  only  a  license  became  an  irrevocable 
contract.  Jt  is  manifest  that  if  Huff  took  anything  under  the  agree- 
ment,  it  must  have  been  a  license,  or  an  easement,  or  an  interest  in 
land,  or  an  incorporeal  right  arising  out  of  it.  It  is  observable  that 
the  1  ase  is  unlike  that  class  in  which  it  has  been  held  by  the  courts 
of  this  State,  that  a  lii  ense  to  do  something  on  the  licensor's  land, 
when   followed    by   the   expenditure   of  money  on   the  faith  of  it,  is 

[76] 


CHAP.  III.]      CORPOREAL  AND  INCORPOREAL  PROPERTY.  JJ 

irrevocable,  and  is  to  be  treated  as  a  binding  contract.  Of  this 
class  Lefevre  v.  Lefevre,  4  S.  &  R.  241,  is  the  leading  case.  It  was 
followed  by  Rerick  v.  Kern,  14  S.  &  R.  267;  by  Swartz  v.  Swartz,  4 
Barr.  353;  by  Ebner  v.  Stichter,  7  Harris,  19,  and  perhaps  by  others. 
All  these  decisions  rest  upon  the  principle  of  estoppel.  The  parties 
cannot  be  placed  in  statu  quo  after  the  license  has  been  executed, 
and  work  done,  or  money  expended  on  the  faith  of  it,  and  hence 
such  a  case  is  regarded  as  presenting  a  sufficient  reason  for  a  chan- 
cellor's interference  to  restrain  any  action  of  the  licensor  which 
would  deprive  the  licensee  of  the  benefit  of  the  expenditure  he  was 
encouraged  to  make  by  the  very  party  who  seeks  to  make  it  fruit- 
less. Equity  treats  the  license  thus  executed  as  a  contract  giving 
absolute  rights,  and  protects  the  licensee  in  the  enjoyment  of  them- 
In  doing  so,  however,  the  courts  of  this  State  have  gone  beyond  the 
common  law,  and  beyond  the  rulings  of  courts  of  equity  elsewhere. 
But  where  there  has  not  been  expenditure  on  the  faith  of  a  license, 
as  in  the  present  case,  there  is  no  foundation  for  an  estoppel,  and 
the  same  reason  does  not  exist  for  holding  it  irrevocable.  Even  if- 
there  has  been  a  consideration  paid,  there  is  nothing  in  the  way  of 
restoring  the  parties  to  their  original  condition.  No  case  in  this 
State  has  gone  to  the  length  of  ruling,  that  it  is  converted  into  a 
contract  giving  irrevocable  interests  in  or  out  of  lands,  by  the  mere 
fact  that  a  consideration  was  agreed  to  be  paid  or  allowed  for  it. 
Such  was  not  either  of  the  cases  that  have  been  cited.  In  all  of 
them  something  had  been  done  in  reliance  upon  the  license,  and  it 
was  impossible  to  restore  the  licensees  to  the  position  they  occupied 
before  the  licence  was  given.  Revocation,  therefore,  would  have 
been  a  fraud. 

We  do  not  propose,  however,  to  decide  that  the  arrangement 
alleged  to  have  been  made  between  the  plaintiff  and  George  Huff,  if 
made  at  all,  was  a  revocable  license.  As  already  said,  it  was  that, 
or  the  creation  of  an  easement  in  lands,  or  the  assurance  of  an  interest 
either  in  or  out  of  lands.  If  it  was  a  revocable  license,  the  instruc- 
tion given  by  the  court  to  the  jury  was  confessedly  right.  If  it  was 
a  contract,  it  was  in  parol,  and  the  defendants  could  not  defend 
under  it.  In  neither  aspect  of  the  case  have  they  been  injured  by 
the  charge  of  the  court.  Let  it  be  assumed  that  it  was  what  they 
claim  it  to  have  been,  it  was  still  an  attempted  parol  grant  of  a  right 
or  an  easement  upon  the  plaintiff's  land.  The  right  which  it  pur- 
ported to  give  was  a  right  of  " profit  a  prendre,"  the  privilege  of 
taking  minerals  from  the  plaintiff's  land  for  the  defendants'  salt 
works.  Perhaps  it  was  not  technically  an  easement;  if  not,  it  was 
more.     Some  modern  decisions  have  called  it  an  easement,  though 


78  CORPOREAL  AND  INCORPOREAL  PROPERTY.  [PART  I. 

it  was  a  privilege  on  another's  land  with  a  profit.  In  Pttger  v. 
Parker,  8  Cush.  145,  the  Supreme  Court  of  Massachusetts  defined 
an  easement  or  servitude  to  be  "  a  right  which  one  proprietor  has 
to  some  profit,  benefit  or  lawful  use  out  of  or  over  the  estate  of 
another  proprietor."  And  in  Post  v.  Pearsall,  22  Wend.  425,  Chan- 
cellor Walworth,  in  speaking  of  rights  of  profit  a  prendre,  said,  that 
"  such  easements  are  either  personal  and  confined  to  an  individual 
for  life  merely,  or  are  claimed  in  reference  to  an  estate  or  interest  in 
other  lands,  as  the  dominant  tenement  for  a.  profit  a  prendre  in  the 
land  of  another,  when  not  granted  in  favor  of  some  dominant  tene- 
ment, cannot  properly  be  said  to  be  an  easement  but  an  interest  or 
estate  in  the  land  itself." 

In  Doe  v.  Wood,  2  B.  &  Aid.  724,  a  grant  of  a  right  to  search  for 
metals  in  another's  land,  and  to  raise  and  dispose  of  the  same  when 
found,  was  called  "  an  incorporeal  privilege."  It  matters  not,  how- 
ever, whether  the  right  claimed  by  the  defendants  be  an  easement 
or  an  incorporeal  privilege  in  the  land.  It  is  incorporeal,  as  all 
easements  and  profits  a  prendre  are.  Whether  one  or  the  other,  it  is 
incapable  of  creation  in  any  other  way  than  by  grant  or  prescription. 
It  is  well  settled  that  an  easement  cannot  exist  in  parol.  Professor 
Washburne  has  collected  a  large  number  of  cases  to  that  effect  in 
his  work  on  Easements,  page  18,  note.  It  is  equally  true  that  an 
interest  in  land  or  arising  out  of  it,  whether  corporeal  or  incorporeal, 
must  be  in  grant.  It  can  pass  only  by  deed.  The  Statute  of  Frauds 
is  applicable  to  all  such  interests,  and  with  especial  reason  when 
they  are  incorporeal.  Its  language  is  very  comprehensive.  It  applies 
to  all  estates,  interests  of  freehold,  or  terms  of  years  (excepting 
leases  not  exceeding  three  years),  or  any  uncertain  interest  of,  in  or 
out  of  any  messuages,  manors,  lands,  etc.,  without  regard  to  any 
consideration  that  may  have  passed.  In  Yeakle  v.  Jacob  et  a/.,  9 
Casey,  376,  a  right  to  cut  timber  on  a  tract  of  land  to  make  rails  for 
the  repair  of  fences  on  another's  tract,  was  held  to  be  an  interest 
in  land  within  the  Statute  of  Frauds.  The  agreement  in  that  case 
having  been  by  parol,  it  was  said  to  be  nothing  but  a  license  at  will, 
though  there  was  a  consideration  for  it.  It  was  not  an  agreement 
made  with  a  view  to  immediate  severance,  and  not,  therefore,  a 
mere  sale  of  growing  timber.  There  is  no  distinction  to  be  made 
between  that  case  and  this,  founded  in  the  fact  that  it  was  a  per- 
petual right.  All  easements  and  profits  <)  prendre  may  be  held  for  lift- 
in  fee,  or  for  years,  and  the  right  was  no  more  perpetual  in  that  case 
than  it  is  in  this.  All  agreements  for  the  sale  of  growing  timber, 
not  made  with  a  view  to  immediate  severance,  are  contracts  for  the 


CHAP.  III.]      CORPOREAL  AND  INCORPOREAL  PROPERTY.  79 

sale  of  interests  in  land,  and  therefore  within  the  statute.     Addison 
on  Cont.  31;   Crosby  v.  Wadsworth,  6  East,  610. 

Without  prosecuting  the  subject  further,  enough  has  been  said  to 
show  that  the  defendants  have  no  protection  in  the  agreement  they 
set  up. 

It  is  clear,  therefore,  that  no  error  was  committed  in  the  court 
below  of  which  they  can  complain. 

Judgment  affirmed.1 

1  The  rents  reserved  in  Ingersoll  v.  Sergeant  and  Van  Rensselaer  v.  Hays,  pp. 
81  and  86,  infra,  are  incorporeal  heieditaments.     See  in  particular  p.  84.  —  Ed. 


CHAPTER  IV. 

Absolute  and  Special  or  Limited  Property  in  Land. 

GOODWIN  v.  GOODWIN. 

33  Connecticut,  314.  —  1866. 
[Reported  herein  at  p.  8.] 


EATON  v.   BOSTON,  CONCORD  AND   MONTREAL 
RAILROAD. 

51  New  Hampshire,  504.  —  1872. 

[Reported  herein  at  p.  I.] 

[So] 


CHAPTER  V. 

Allodial  and  Feudal  Property  in  Land. 

VAN   RENSSELAER  v.  HAYS,, 


19  New  York,  68.  —  1859. 

Action  to  recover  rent  in  arrear.      Plaintiff  is  a  devisee  of  Stephen 
Van  Rensselaer,  deceased.     Further  facts  appear  in  opinion. 

Denio,  J.  —  The  defendant's  position  is,  that  the  covenant  for  the 
payment  of  the  rent  is,  in  law,  personal  between  the  grantor  and 
grantee,  or  what  is  sometimes  called  in  the  books  a  covenant  in 
gross,  and,  consequently,  that  after  the  death  of  the  original  parties 
no  action  to  recover  rent  can  be  maintained  in  favor  of  or  against  \ 
any  persons  except  their  respective  executors  or  administrators.  As 
the  law  contemplates  that  the  estates  of  deceased  persons  shall  be 
speedily  settled,  and  in  the  natural  course  of  things  the  personal 
representatives  of  a  man  disappear  with  the  generation  to  which 
they  belong,  the  intention  of  the  parties  to  the  indenture  to  create 
a  perpetual  rent  issuing  out  of  the  premises  will,  if  that  position-^ 
can  be  maintained,  be  entirely  disappointed;  and  the  argument  is^ 
in  effect,  that  the  law  does  not  permit  arrangements  by  which  a  rent 
shall  be  reserved  upon  a  conveyance  in  fee,  and  that  where  it  is 
attempted  the  reservation  does  not  affect  the  title  to  the  land,  but 
the  conveyance  is  absolute  and  unconditional.  The  design  of  the 
parties  to  create  relations  which  should  survive  them,  and  continue 
to  exist  in  perpetuity  by  being  annexed  to  the  ownership  of  the 
estate  of  the  grantee  of  the  land  on  the  one  hand,  and  of  the  rent 
on  the  other,  is  manifest  from  the  language  of  the  instrument. 
They  were  careful  to  declare  that  the  obligation  to  pay  the  rent 
should  attach  to  those  who  should  succeed  the  grantee  as  his  heirs 
and  assigns,  and  should  run  in  favor  of  the  heirs  and  assigns  of  the 
grantor;  and  the  nature  of  a  perpetually  recurring  payment  requires 
that  there  should  be  an  endless  succession  of  parties  to  receive  and 
to  pay  it.  We  have  a  legislative  declaration,  in  an  act  of  1805, 
passed  about  ten  years  after  this  conveyance,  that  grants  in  fee 
reserving  rents  had  then  long  been  in  use  in  this  State  (ch.  98);  and 
the  design  of  the  Legislature  by  that  enactment  was  not  only  to 

LAW  OF  PROP.   IN  LAND  —  6  [8l] 


82 


ALLODIAL   AND    FEUDAL   PROPERTY    IN    LAND.         [PART  I. 


render  such  grants  thereafter  available  according  to  their  intention, 
but  to  resolve,  in  favor  of  such  transactions,  the  doubts  which  it  is 
recited  had  been  entertained  respecting  their  validity.  Still,  if,  by 
a  stubborn  principle  of  law,  a  burden  in  the  form  of  an  annual  pay- 
ment cannot  be  attached  to  the  ownership  of  land  held  in  fee  simple, 
or  if  the  right  to  enforce  such  payment  cannot  be  made  transferable 
by  the  party  in  whom  it  is  vested,  effect  must  be  given  to  the  rule, 
though  it  may  have  been  unknown  to  the  parties  and  to  the  Legisla- 
ture; unless,  indeed,  the  interposition  of  the  latter,  by  the  statute 
which  has  been  mentioned,  can  lawfully  operate  retrospectively 
upon  the  conveyance  under  consideration.  It  is  not  denied  but  that, 
by  the  early  common  law  of  England,  conveyances  in  all  respects 
like  the  present  would  have  created  the  precise  rights  and  obliga- 
tions claimed  by  the  plaintiff;  but  it  is  insisted  that  the  act  respect- 
ing tenures,  called  the  statute  of  quia  emptores,  enacted  in  the 
eighteenth  year  of  King  Edward  I.,  and  which  has  been  adopted  in 
this  country,  rendered  such  transaction  no  longer  possible.  The 
principles  of  that  statute  have,  in  my  opinion,  always  been  the  law 
of  this  country,  as  well  during  its  colonial  condition  as  after  it  became 
an  independent  State.  A  little  attention  to  the  pre-existing  state 
of  the  law  will  show  that  this  must  necessarily  have  been  so.  In  the 
early  vigor  of  the  feudal  system,  a  tenant  in  fee  could  not  alienate 
the  feud  without  the  consent  of  his  immediate  superior;  but  this 
extreme  rigor  was  soon  afterwards  relaxed,  and  it  was  also  avoided 
by  the  practice  of  subinfeudation,  which  consisted  in  the  tenant 
enfeoffing  another  to  hold  of  himself  by  fealty  and  such  services  as 
might  be  reserved  by  the  act  of  feoffment.  Thus  a  new  tenure  was 
created  upon  every  alienation,  and  thence  there  arose  a  series  of 
lords  of  the  same  lands,  the  first,  called  the  chief  lords,  holding 
immediately  of  the  sovereign;  the  next  grade  holding  of  them;  and 
so  on,  each  alienation  creating  another  lord  and  another  tenant. 
This  practice  was  considered  detrimental  to  the  great  lords,  as  it 
deprived  them,  to  a  certain  extent,  of  the  fruits  of  the  tenure,  such 
as  escheats,  marriages,  wardships,  and  the  like,  which,  when  due 
from  the  terre-tenants,  accrued  to  the  next  immediate  superior. 
This  was  attempted  to  be  remedied  by  the  32d  chapter  of  the  Great 
Charter  of  Henry  III.  (A.  D.  1225),  which  declared  that  no  freeman 
should  thenceforth  give  or  sell  any  more  of  his  land,  but  so  that  of 
the  residue  of  the  lands  the  lord  of  the  fee  might  have  the  service 
due  to  him  which  belonged  to  the  fee.  1  Ruffhead's  Statutes  at 
Large,  8.  The  next  important  change  was  the  statute  of  quia 
emptoresy  enacted  in  [290,  which,  after  reciting  that  "  forasmuch  as 
purchasers  of  lands  and  tenements  {quia  emptores  terrarum  et tene~ 


CHAP.  V.]      ALLODIAL   AND   FEUDAL   PROPERTY    IN    LAND.  83 

mentorum),  of  the  fees  of  great  men  and  other  lords  had  many  times 
entered  into  their  fees  to  the  prejudice  of  the  lords,"'  to  be  holden 
of  the  feoffors  and  not  of  the  chief  lords,  by  means  of  which  these 
chief  lords  many  times  lost  their  escheats,  etc.,  "  Which  things 
seemed  very  hard  and  extreme  unto  these  lords  and  other  great 
men,"  etc.,  enacted  that  from  henceforth  it  should  be  lawful  for\  ,. 
every  freeman  to  sell  at  his  own  pleasure  his  lands  and  tenements,  . 
or  part  of  them,  so  that  the  feoffee  should  hold  the  same  lands  and], 
tenements  of  the  chief  lord  of  the  same  fee  by  such  services  andj  rj 
customs  as  his  feoffor  held  before.  Id.  122.  The  effect  of  this 
important  enactment  was,  that  henceforth  no  new  tenure  of  lands 
which  had  already  been  granted  by  the  sovereign  could  be  created. 
Every  subsequent  alienation  placed  the  feoffee  in  the  same  feudal 
relation  which  his  feoffer  before  occupied;  that  is,  he  held  of  the 
same  superior  lord  by  the  same  services,  and  not  of  his  feoffor.  The 
system  of  tenures  then  existing  was  left  untouched,  but  the  progress 
of  expansion  under  the  practice  of  subinfeudation  was  arrested. 
Our  ancestors,  in  emigrating  to  this  country,  brought  with  them 
such  parts  of  the  common  law  and  such  of  the  English  statutes  as 
were  of  a  general  nature  and  applicable  to  their  situation;  1  Kent, 
473,  and  cases  cited  in  note  a  to  the  5th  ed. ;  Bogardus  v.  Trinity 
Church,^  Paige,  178;  and  when  the  first  constitution  of  this  State 
came  to  be  framed,  all  such  parts  of  the  common  law  of  England 
and  of  Great  Britain  and  of  the  acts  of  the  Colonial  Legislature  as 
together  formed  the  law  of  the  Colony  at  the  breaking  out  of  the 
Revolution,  were  declared  to  be  the  law  of  this  State,  subject,  of 
course,  to  alteration  by  the  Legislature.  Art.  35.  The  law  as  to 
holding  lands  and  of  transmitting  the  title  thereto  from  one  subject 
to  another  must  have  been  a  matter  of  the  first  importance  in  our 
colonial  state;  and  there  can  be  no  doubt  but  that  the  great  body 
of  the  English  law  upon  that  subject,  so  far  as  it  regarded  the  trans- 
actions of  private  individuals,  immediately  became  the  law  of  the 
Colony,  subject  to  such  changes  as  were  introduced  by  colonial  legis-:, p-  ' 
lation.  The  lands  were  holden  under  grants  from  the  crown,  and 
as  the  king  was  not  within  the  statute  quia  emptores.  a  certain  tenure, 
which,  after  the  act  of  12  Charles  II.  (ch.  24),  abolishing  military 
tenures,  must  have  been  that  of  free  and  common  socage}  was 
created  as  between  the  king  and  his  grantee.  I  have  elsewhere 
expressed  the  opinion  that  the  king  might,  notwithstanding  the 
statute  against  subinfeudation,  grant  to  his  immediate  tenant  the 
right  to  alien  his  land  to  be  holden  of  himself,  and  thus  create  a 
manor,  where  the  land  was  not  in  tenure  prior  to  the  18th  Edward  I. 
The  People  v.  Van  Rensselaer,  5   Seld.  334.     But  with  the  exception 


84  ALLODIAL   AND   FEUDAL    PROPERTY    IN   LAND.         [PART  I. 

of  the  tenure  arising  upon  royal  grants,  and  such  as  might  be  created 
by  the  king's  immediate  grantees  under  express  license  from  the 
crown,  I  am  of  opinion  that  the  law  forbidding  the  creating  of  new 
tenants  by  means  of  subinfeudation  was  always  the  law  of  the 
Colony,  and  that  it  was  the  law  of  this  State,  as  well  before  as  after 
the  passage  of  our  act  concerning  tenures,  in  1787.  A  contrary 
theory  would  lead  to  the  most  absurd  conclusions.  We  should  have 
to  hold  that  the  feudal  system,  during  the  whole  colonial  period,  and 
for  the  first  ten  years  of  the  State  government,  existed  here  in  a  con- 
dition of  vigor  which  had  been  unknown  in  England  for  more  than 
three  centuries  before  the  first  settlement  of  this  country.  We  should 
be  obliged  to  resolve  questions  arising  upon  early  conveyances, 
under  which  many  titles  are  still  held,  by  the  law  which  prevailed  in 
England  during  the  first  two  centuries  after  the  Conquest,  before 
the  commencement  of  the  Year  Books,  and  long  before  Littleton 
wrote  his  Treatise  upon  Tenures.     *     *     * 

We  are,  then,  to  ascertain  the  effect  of  a  conveyance  in  fee  reserv- 
ing rent,  upon  the  assumption  that  the  statute  of  quia  emptores 
applies  to  such  transactions.  In  the  first  place,  no  reversion,  in  the 
sense  of  the  law  of  tenures,  is  created  in  favor  of  the  grantor;  and 
as  the  right  to  distrain  is  incident  to  the  reversion,  and  without  one 
it  cannot  exist  of  common  right,  the  relation  created  by  this  convey- 
ance did  not  itself  authorize  a  distress.  The  fiction  of  fealty  did 
not  exist.  The  rent  in  terms  reserved  was  not  a  rent-service.  Litt., 
sees.  214,  215.  It  was,  however,  a  valid  rent-charge.  According  to 
the  language  of  Littleton,  "  if  a  man,  by  deed  indented  at  this  day, 
maketh  a  feoffment  in  fee,  and  by  the  same  indenture  reserveth  to  him 
and  to  his  heirs  a  certain  rent,  and  that  if  the  rent  be  behind  it  shall 
be  lawful  for  him  and  his  heirs  to  distrain,  etc.,  such  a  rent  is  a 
rent-charge,  because  such  lands  or  tenements  are  charged  with  such 
distress  by  force  of  the  writing  only,  and  not  of  common  right." 
Id.,  sees.  217,  218.  And  the  law  is  the  same  where  the  conveyance 
is  by  deed  of  bargain  and  sale  under  the  statute  of  uses.  Co.  Litt. 
143  b.  Mr.Hargrave,  in  his  note  to  this  part  of  the  commentaries, 
expresses  the  opinion  that  a  proper  fee  farm  rent  cannot  be  reserved 
upon  a  conveyance  in  fee,  since  the  statute  of  quia  emptores;  but  he 
(  on<  edes  that  where  a  conveyance  in  fee  contains  a  power  to  distrain 
and  to  re-enter,  the  rent  would  be  good  as  a  rent-charge.  Note  235 
to  Co.  Litt.  [43  b.  Blackstone  says  that  upon  such  a  conveyance 
the  land  is  liable  to  distress,  not  of  common  right,  but  by  virtue  of 
the  <  lause  in  the  deed.     2  Bl.  Com.,  42.     *    *     * 

These  authorities  establish  the  position  that  upon  the  conveyance 
under    consideration    a    valid    rent   was   reserved,    available    to    the 


CHAP.  V.]   ALLODIAL  AND  FEUDAL  PROPERTY  IN  LAND. 


8 1 


grantor  by  means  of  the  clause  of  distress.  This  rent,  though  not 
strictly  an  estate  in  the  land,  Payne  v.  Peal,  4  Denio,  405,  is  never- 
theless a  hereditament,  and  in  the  absence  of  a  valid  alienation  by  the 
person  in  whose  favor  it  is  reserved,  it  descends  to  his  heirs.  Its 
nature,  in  respect  to  the  law  of  descents,  is  explained  by  Lord 
Coke,  who  at  the  same  time  points  out  the  distinction  between  such 
a  rent  as  we  are  considering  and  a  rent-service  reserved  upon  a  feoff- 
ment which  created  a  tenure.  He  says  that  if  a  man  seized  of  a 
manor,  as  heir  on  the  part  of  his  mother,  before  the  statute  of  quia 
emptores,  had  made  a  feoffment  in  fee  of  parcel,  to  hold  of  him  by 
rent  and  service,  albeit  they  (the  services)  are  newly  created,  yet 
for  that  they  are  parcel  of  the  manor,  they  shall,  with  the  rest  of 
the  manor,  descend  to  the  heir  on  the  part  of  the  mother.  If  a 
man  so  seized,  that  is  by  inheritance  from  his  mother,  maketh 
[now]  a  feoffment  in  fee,  reserving  a  rent  to  him  and  his  heirs,  this 
rent  shall  go  to  the  heirs  on  the  part  of  the  father.  Co.  Litt.  12,  b. 
The  reason  is  given  in  a  case  in  Hobart,  thus:  "  If,  upon  a  feoff- 
ment of  lands  which  I  have  on  the  part  of  the  mother,  or  in  Borough 
English  (where  the  youngest  son  is  the  heir)  I  reserve  a  rent  to  me 
and  to  my  heirs,  it  shall  go  to  my  heirs  at  common  law,  for  it  is  not 
within  the  custom,  but  it  is  a  new  thing  divided  from  the  land  itself  " 
Counden  v.  Clerk,  31,  b.  The  distinction  is  this:  A  rent-service, 
such  as  arose  upon  an  alienation  of  a  fee  at  common  law,  was  inci- 
dent to  the  reversion,  and,  therefore,  a  part  of  the  estate  remaining 
in  the  feoffor;  and  upon  his  death  it  passed  in  the  same  channel  of 
descent  as  the  estate  would  have  done  if  there  had  been  no  aliena- 
tion. But  where  there  is  no  reversion,  as  in  the  case  of  a  convey^ 
ance  in  fee  since  the  statute,  the  rent  reserved  is  an  inheritable  estate; 
newly  created,  and  descends  according  to  the  general  law  of  inherit-' 
ance,  to  the  heirs  of  the  person  dying  seized,  without  regard  to  the 
heritable  quality  of  the  estate,  the  conveyance  of  which  formed  the 
consideration  of  the  rent.  Preston  states  the  principle  thus:  "  A 
rent  incident  to  the  reversion  will  descend  with  the  reversion  as  a 
part  thereof;  but  a  rent  reserved  on  a  grant  in  fee,  or  limited  by 
way  of  use  in  a  conveyance  to  uses,  will  be  descendible  as  a  new 
purchase  from  the  person  to  whom  it  is  reserved  or  limited." 
3  Essay  on  Abstracts  of  Title,  54.  Further  on  he  says  that  in  such 
cases  "  the  instruments  amount  to,  first,  a  grant  of  the  land  from 
the  owner  of  the  same;  and,  secondly,  a  grant  of  the  rent  on  the  part 
of  the  grantee."  Id.  55.  To  the  same  purpose  see  3  Cruise,  313  (N.  Y. 
ed.  of  1834).  The  descendible  quality  of  these  rents  was  early  estab- 
lished in  this  State  in  the  case  of  The  Executors  of  Van  Rensselaer  v. 
The  Executors  of  Plainer,  decided  in  the  year  1800.     *     *     * 


86  ALLODIAL   AND   FEUDAL   PROPERTY   IN   LAND.       [PART  I. 

But  the  plaintiff  in  this  case  sues  as  devisee  of  the  grantor  and 
must  establish  the  position  that  he  is  entitled  in  that  character  to  sue 
upon  the  covenant.  *  *  *  In  England,  it  is  perhaps  a  debatable 
question  at  this  day,  whether  the  assignee  of  the  grantor  can  main- 
tain the  action.  [Some  English  cases  are  considered  at  this  point.  ]  [Sir 
Edward  Sugden]  says  the  rent-charge  is  an  incorporeal  hereditament, 
and  issues  out  of  the  land  and  the  land  is  bound  by  it.  The  covenant, 
therefore,  he  adds,  may  well  run  with  the  rent  in  the  hands  of  an 
assignee;  the  nature  of  the  subject,  which  savors  of  the  realty, 
altogether  distinguishes  the  case  from  a  matter  merely  personal. 
[After  considering  certain  New  York  cases  and  statutes  it  is  decided  that 
the  devisee  of  Van  Rensselaer  can  sue,  upon  the  covenant,  any  one  upon 
I    whom  the  covenant  is  binding,  and  that  it  is  binding  upon  the  defendant.] 

Judgment  affirmed.1 


INGERSOLL  v.  SERGEANT. 

i  Wharton  (Pa.),  336.  —  1836. 

Replevin  by  Ingersoll  against  Mrs.  Sergeant  to  recover  chattels 
distrained  for  rent.  Defendant  avowed  for  rent  in  arrear  and  a 
verdict  was  found  in  her  favor,  subject  to  the  opinion  of  this  court. 

Plaintiff  insists  that  the  release  of  a  portion  of  the  premises  from 
the  burden  of  the  rent  extinguished  the  whole  rent. 

Kennedy,  J.  — The  plaintiff  alleges  that  the  rent  in  question  is  in 
its  nature  strictly  a  rent-charge,  and  that  the  defendant,  therefore, 
by  releasing  to  Jonathan  Smith  a  part  of  the  ground  upon  which, 
according  to  his  own  phrase,  it  was  charged,  released  the  whole  rent. 
It  becomes  material,  therefore,  to  inquire  and  see  whether  it  be  a 
rent-charge  or  not;  and  if  not,  whether  it  is  not  a  rent-service; 
because  if  it  be  a  rent-service,  the  defense  set  up  against  the  payment 
of  it  cannot  avail,  at  most,  beyond  what  shall  be  considered  a  pro- 
portional part,  according  to  the  value  of  the  land  released. 

According  to  Littleton,  there  are  three  sorts  of  rent,  which  he 
specifies  in  section  213;  namely,  rent-service,  rent-charge,  and  rent- 
seek.  "  A  rent-service,"  he  says,  "  is  where  the  tenant  holdeth  his 
land  of  his  lord  by  fealty  and  certain  rent,  or  by  homage,  fealty  and 

1  Feudal  tenures  under  the  old  crown  grants  continued  in  New  York  until 
the  R.  S  of  1830.  Grants  under  the  State  government  were  allodial  from  the 
first.  In  1830  all  holdings  of  land  in  New  York  were  made  allodial.  Seel 
R.  S.  718,  ,';'  1   and  3.    See  also  const,  of  1894,  art.  I,  §§  11  and  12.  —  Ed. 


CHAP.  V.J      ALLODIAL   AND   FEUDAL   PROPERTY   IN   LAND.  87 

certain  rent,  or  by  other  services  and  certain  rent.  And  if  rent- 
service  at  any  day,  that  ought  to  be  paid,  be  behind,  the  lord  may 
distrain  for  that  of  common  right."  And  in  section  218,  he  also  shows 
how  a  rent-charge  and  a  rent-seek  were  created  before  the  passage 
of  the  statute  quia  emptor es  terrarum,  (18th  Edw.  1,  stat.  1,  c.  1). 
He  there  says,  "  if  a  man  seized  of  certain  land,  grant  by  deed  poll, 
or  his  indenture,  a  yearly  rent, to  be  issuing  out  of  the  same  land  to 
another  in  fee,  or  fee  tail,  or  for  term  of  life,  etc.,  with  a  clause  of 
distress,  etc.,  then  this  is  a  rent-charge;  and  if  the  grant  be  without 
clause  of  distress,  then  it  is  a  rent-seek;  and  idem  est  quod  redditus 
siccus,  for  that  no  distress  is  incident  unto  it."  And  in  the  217th 
section,  he  lays  it  down  that  "  if  a  man  by  deed  indented  at  this  day 
(which  was  after  the  statute  quia  emptores  had  come  into  operation,) 
maketh  a  gift  in  fee  tail,  the  remainder  over  in  fee,  or  a  lease  for 
life,  the  remainder  over  in  fee,  or  a  feoffment  in  fee;-  and  by  the 
same  indenture,  he  reserveth  to  him  and  to  his  heirs  a  certain 
rent,  and  that  if  the  rent  be  behind,  it  shall  be  lawful  for  him 
and  his  heirs  to  distrain,  etc.,  such  a  rent  is  a  rent-charge;  because 
such  lands  or  tenements  are  charged  with  such  distress  by  force 
of  the  writing  only,  and  not  of  common  right."  But  before  the 
passage  of  the  statute  quia  emptores,  it  was  clearly  otherwise;  for 
in  the  216th  section,  he  says,  "  before  that  statute,  if  a  man  had 
made  a  feoffment  in  fee  simple  by  deed  or  without  deed,  yielding  to 
him  and  to  his  heirs  a  certain  rent,  this  was  a  rent-service,  and  for 
this  he  might  have  distrained  of  common  light;  and  if  there  were  no 
reservation  of  any  rent,  nor  of  any  service,  yet  the  feoffee  held  of  the 
feoffor  by  the  same  service  as  the  feoffer  did  hold  over  of  his  lord  next 
paramount."  Hence  it  is  evident  that  the  ground  rent  in  question 
cannot  be  considered  a  rent-charge,  unless  it  be  so  by  the  force  of  the 
statute  quia  emptores;  but  if  it  shall  appear,  upon  examination,  that 
this  statute  is  not  and  never  has  been  in  force  in  Pennsylvania,  then 
it  would  seem  to  be  equally  evident,  that  it  must  be  held  to  be  a 
rent-service.  King  Charles  the  2d,  in  granting  the  province  of 
Pennsylvania  to  William  Penn  and  his  heirs,  gave  it  to  be  held  in 
free  and  common  socage  and  by  fealty  only,  for  all  services;  (see 
section  3  of  the  charter.)  And  by  the  17th  section  thereof,  William 
Penn,  his  heirs  and  assigns,  had  full  and  absolute  power  given  to 
them,  at  all  times  thereafter,  and  forever,  to  assign,  alien,  grant, 
demise  or  enfeoff  such  parts  and  parcels  thereof,  to  such  persons  as 
might  be  willing  to  purchase  the  same,  their  heirs  and  assigns,  in 
fee  simple,  fee  tail,  for  term  of  life,  lives,  or  years  to  be  held  of 
the  said  William  Penn,  his  heirs  and  assigns,  as  of  the  seigniory 
of  Windsor  by  such  services,  customs  and  rents  as  should  seem  fit, 


88  ALLODIAL   AND   FEUDAL    PROPERTY    IN    LAND.      [PART  I. 

to  the  said  William  Penn,  his  heirs  and  assigns,  and  not  immediately 
of  the  said  King  Charles,  his  heirs  or  successors.'  And  again  by 
the  18th  section,  it  was  further  provided,  that  the  purchasers  from 
William  Penn,  his  heirs  or  assigns,  should  hold  such  estates  as  might 
be  granted  to  them,  either  in  fee  simple,  fee  tail,  or  otherwise,  as 
to  the  said  William  Penn,  his  heirs  or  assigns  should  seem  expedient, 
the  statute  of  quia  emptores  terrarum  in  anywise  notwithstanding. 
From  these  provisions,  it  appears  most  clearly,  that  it  was  the  inten- 
tion of  King  Charles  to  grant  the  lands  of  the  province  to  William 
Penn,  his  heirs  and  assigns,  so  as  to  enable  them  to  hold  and  dis- 
pose of  the  same  as  if  the  statute  quia  emptores  had  not  been  in  exist- 
ence. That  it  has  been  ever  so  understood  may  be  seen  and  fairly 
inferred  from  both  our  legislative  and  judicial  proceedings.  *  *  * 
Then  an  act  of  the  assembly  for  ascertaining  the  descent  of  lands, 
and  better  disposition  of  the  estates  of  persons  dying  intestate  was 
passed;  [app.  to  Hall  &  Sellers,  vol.  Pro.  L.  p.  4].  This  act, 
after  making  all  the  lands  as  well  as  the  personal  estate  of  the 
intestate,  liable  to  be  seized  and  sold  by  his  administrators  for 
the  payment  of  his  debts,  directed,  by  the  second  section  thereof, 
that  in  case  he  should  leave  no  known  kindred,  then  all  his 
lands,  tenements  and  hereditaments  should  descend  and  go  to  the 
immediate  landlord,  of  whom  such  lands  were  held,  his  heirs  and 
assigns;  and  if  held  immediately  of  the  proprietary,  then  to  the  pro- 
prietary, his  heirs  and  assigns;  and  all  goods,  chattels,  and  personal 
estate  to  the  proprietary  and  governor,  his  heirs  and  assigns  Now, 
here  we  have  the  right  of  escheat  established  upon  and  regulated 
according  to  the  right  of  subinfeudation,  and  the  principle  of  tenure, 
between  the  last  feoffee  or  terre-tenant  and  his  immediate  feoffor  or 
vendor.  The  same  provision  in  regard  to  the  right  of  escheat  was 
introduced  into  a  new  intestate  law  passed  in  1705  (Hall  &  Sellers, 
vol.  Pro.  L.  35),  which  continued  in  force  till  after  the  Revolution. 
This  regulation  of  the  right  of  escheat  was  in  direct  contravention 
to  the  statute  quia  emptores;  which  was  enacted  expressly  for  the  pur- 
pose of  securing  it  to  the  lord  paramount,  instead  of  the  immediate 
landlord  or  feoffor  or  vendor,  in  every  case  of  the  terre-tenant's  dying 
without  heirs;  together  with  the  right  of  marriage  and  of  wardship, 
which  were  also  claimed  as  the  fruits  of  the  feudal  system.  The 
two  last  of  these  rights,  however,  were  taken  away  by  12  Car.  2,  c. 
34,  some  six  years  before  the  granting  of  the  province  to  William 
Penn;  so  that  the  door  seems  to  have  been  completely  closed  from 
the  firsl  in  the  province,  against  the  introduction  of  the  only  remain- 
ing right  that  existed  under  the  authority  of  the  statute  quia  emptort  r 
terrarum.       As   to    judicial    evidence   of    the  non-existence  of    this 


CHAP.  V.]   ALLODTAL  AND  FEUDAL  PROPERTY  IN  LAND.    89 

statute  here,  I  refer  first  to  the  case  of  Dunbar,  Heir  of  Dunbar  v. 
Jumper,  Assignee  of  Thompson,  2  Yeates,  74,  where  upon  a  mutual 
deed  executed  by  the  vendor  and  the  vendee,  by  which  the  vendor 
sold  and  conveyed  an  acre  of  land  to  the  vendee  in  fee,  it  being 
necessary  for  a  grist-mill  of  the  vendee,  in  consideration  of  the 
vendee's  yielding  and  paying  to  the  vendor  and  the  lawful  heir  of 
his  body,  the  privilege  of  grinding  such  grain  as  might  be  used  or 
consumed  by  the  vendor  in  his  private  family,  on  the  plantation 
which  he  then  occupied,  or  the  heir  of  his  body,  on  the  said  planta- 
tion after  his  decease,  free  of  toll,  as  long  as  the  mill  should  be  in 
order  to  grind,  it  was  held  by  Shippen  and  Yeates,  Justices,  at  Nisi 
Prius,  at  Carlisle,  in  1796,  that  an  action  of  covenant  was  maintain- 
able by  the  heirs-at-law  of  the  vendor  against  Jumper,  the  assignee 
of  Thompson,  the  vendee,  for  refusing  to  grind  grain  toll  free  for 
the  plaintiff,  according  to  the  terms  of  the  deed.  Now,  under  the 
statute  quia  emptores,  if  it  had  been  in  force  here  when  this  case  was 
decided,  and  our  lands,  considered  as  held  under  feudal  tenures,  the 
grinding  of  the  grain  ought  to  have  been  regarded  as  a  rent-charge, 
and  perhaps  more  properly  so,  than  a  ground-rent  reserved  on  a 
deed  poll.  But  a  covenant  to  pay  a  rent-charge  is  merely  personal 
and  collateral  to  the  land,  and  therefore  will  not  render  the  assignee 
liable  to  an  action  of  covenant  for  the  non-performance  of  it. 
Brewster  v.  Kitchen,  Kitchell  or  Kidgell,  1  Ld.  Raymond,  322,  s.  c, 
Holt,  175;  5  Mod.  374;  1  Salk.  198;  12  Mod.  170-1;  Cookv.  Earl  of 
Arundel,  Hardr.  87;  Piatt  on  Co.  65,  475.  Hence,  we  may  very 
fairly  conclude,  that  the  court  in  Dunbar  and  Jumper  did  not  con- 
sider the  statute  of  quia  emptores  in  force  here,  otherwise  they  would 
not  have  held,  as  they  did,  that  the  covenant  of  the  vendee  to  grind 
toll  free  ran  with  the  land,  and  that  the  assignee  or  terre-tenant 
thereof  became   liable   to  an   action   of   covenant  for  not  fulfilling 

1  j-  *t*  *p  "p 

This  statute  then  being  out  of  the  way,  we  have  seen  that,  accord- 
ing to  the  principles  of  the  common  law  (Littleton,  sec.  216),  the 
rent  in  question  is  clearly  a  rent-service.  And  Lord  Coke,  in  his 
commentary  upon  this  section  (Co.  Litt.  143  a),  adds  "  at  the  com- 
mon law,  if  a  man  had  made  a  feoffment  in  fee  by  parol,  he  might 
upon  that  feoffment  have  reserved  a  rent  to  him  and  his  heirs, 
because  it  was  a  rent-service  and  a  tenure  thereby  created."  It  was 
called  a  rent-service,  because  it  was  a  compensation  for  the  services 
to  which  the  land  was  originally  liable;  3  Cruise,  Dig.  Rents,  tit. 
28,  c.  1,  sec.  6.  And  at  this  day,  the  tenant  (says  Chief  Baron 
Gilbert),  does  the  corporeal  service  of  fealty;  Gilb.  on  Rents,  9; 
and  therefore  it  is  still  called  a  rent-service,  because  it  hath  always 


90  ALLODIAL   AND    FEUDAL    PROPERTY    IN    LAND.      [PART  I. 

some  corporeal  service  incident  to  it,  which  at  the  least  is  fealty. 
Gilb.  on  Distress,  5;   1  Inst.  142  a. 

The  rent  in  question  then  being  a  rent-service  and  not  a  rent- 
charge,  the  doctrine  contended  for,  as  well  as  the  authorities  cited 
by  the  plaintiff's  counsel  on  the  argument,  showing  what  in  law  will 
amount  to  an  extinguishment  of  the  whole  rent,  where  it  is  a  rent 
charge,  and  that  it  is  not  in  its  nature  apportionable  by  the  act  of 
the  parties,  will  be  found  to  be  wholly  inapplicable  to  a  rent-service. 
A  rent-charge  was  considered  repugnant  to  the  principles  of  the 
feudal  policy,  inasmuch  as  it  created  an  incumbrance  upon  the  land 
of  the  tenant,  and  rendered  him  the  less  able  to  perform  the 
services  incident  to  his  tenure;  and  being  looked  on  as  against  com- 
mon right,  the  law  did  not  attach  the  remedy  by  distress  for  its 
recovery  when  in  arrear,  so  that  it  is  only  given  by  virtue  of  the 
clause  to  that  effect  in  the  deed  creating  it.  Gilb.  on  Rents,  155; 
Littleton,  sec.  217;  3  Cruise,  Dig.  tit.  28,  Rents,  ch.  1  sec.  9.  In 
short  it  was  regarded  with  disfavor  by  the  law,  and  any  act,  there- 
fore, on  the  part  of  the  owner  of  it,  which  could  in  any  way  be  con- 
strued to  be  incompatible  with  the  future  assertion  of  right  to  the 
same,  was  held  to  amount  to  a  release  or  an  extinguishment  of  it, 
without  regard  to  the  intention;  as,  for  instance,  if  he  purchased  or 
released  a  part  of  the  land  from  the  rent,  upon  which  it  was  charged ; 
this  was  held  to  be  an  entire  extinguishment  of  his  right  to  the  whole 
rent;  Littleton,  sec.  222;  1  Inst.  147  b;  Gilb.  on  Rents,  152;  18  Vin. 
Abr.  504;  Bro.  tit.  Apportionment,  pi.  17;  3  Cruise  Dig.  tit.  28, 
Rents,  ch.  3,  sees.  13,  16.  But  a  rent-service  being  given  as  a  com- 
pensation for  the  services  to  which  the  land  was  originally  liable 
under  the  feudal  system  (3  Cruise  Dig.  tit.  28,  ch.  1,  sec.  6),  must, 
therefore,  be  judged  of  by  the  rules  which  regulated  the  perform- 
ance of  those  services.  Accordingly,  Littleton  lays  it  down  expressly 
in  section  222,  "  if  a  man  which  hath  a  rent-service,  purchase  parcel 
of  the  land  out  of  which  the  rent  is  issuing,  this  shall  not  extinguish 
all,  but  for  parcel ;  for  a  rent-service  in  such  case  may  be  apportioned 
according  to  the  value  of  the  land."  If  the  rent,  however,  in  such 
case  should  be  indivisible,  as  if  it  consist  of  a  horse,  hawk,  etc.,  it 
would  be  taken  away;  Bruerton's  Case,  6  Co.  1  b;  Co.  Litt.  149  a; 
8  Co.  155  a;  Mo.  203;  Gilb.  on  Rents,  151,  165.  So  if  the  lord 
purchase  a  part  of  the  tenancy  in  fee,  a  proportional  part  only  of 
the  rent  becomes  extinct,  and  the  residue  will  continue  in  esse, 
be<  ause  of  the  enjoyment  of  the  remaining  part  of  the  land  by  the 
tenant,  which  is  the  consideration  for  the  payment  of  the  rent. 
/  cough's  Case,  9  Co.  135;  Co.  Litt.  148  b.  Lord  Hale,  Chief  Jus- 
tice, in  Hodgkins  v.  Robson,  1  Ventr.  276,  may  possibly  be  thought  to 


CHAP.  V.]   ALLODIAL  AND  FEUDAL  PROPERTY  IN  LAND.    91 

go  still  further,  when  he  lays  it  down  that  if  a  lessee  assign  part  of 
the  land  which  he  holds  on  lease,  to  a  stranger  without  reserving 
any  rent,  and  the  stranger  assigns  it  to  the  lessor,  there  shall  be  no 
apportionment  or  suspension  of  any  part  of  the  rent,  because  the 
tenant,  by  assigning  part,  made  himself  answerable  for  the  whole 
rent;  and  the  lessor  claiming  under  a  stranger,  is  entitled  to  the 
benefit  of  his  contract.  This  proposition  is  also  repeated  with  seem- 
ing approbation,  by  Lord  Chief  Justice  Baron  Gilbert,  in  his  treatise 
on  Rents,  181.  The  reason  of  the  difference  mentioned  between 
rent-charge  and  rent-service  is  stated  by  Lord  Chief  Baron  Gilbert 
to  be  this:  In  case  of  rent-service,  the  tenant  is  under  obligation 
of  the  oath  of  fealty,  to  bear  faith  to  his  lord,  and  to  perform  the  serv- 
ices for  the  land  which  he  holds  of  him;  and  this  obligation  has  its 
force,  while  the  tenure  of  the  lord  continues,  and  the  tenure  could  not 
be  discharged  by  purchase  of  part  of  the  tenancy ;  for  that  construction 
would  not  only  be  attended  with  this  absurdity,  that  the  part  remain- 
ing in  the  tenant's  hands  would  be  held  of  nobody,  and  in  conse- 
quence would  produce  this  public  inconvenience,  that  the  remainder 
of  the  tenancy  would  be  free  of  all  feudal  duties;  which  in  the  height 
of  the  feudal  tenures  must  have  been  a  detriment  to  the  public; 
wherefore,  since  for  this  reason,  the  tenure  between  the  lord  and 
the  tenant,  continued  for  so  much  of  the  land  as  remained  unpur- 
chased, the  tenant,  by  his  oath  of  fealty,  was  obliged  to  perform  the 
services  of  it.  But  as  it  would  ha<ve  been  unreasonable  to  have  com- 
pelled him  to  perform  the  whole  services  that  were  reserved  upon 
the  old  donation,  when  the  lord  had  wilfully  resumed  part  of  the 
land,  which  was  the  consideration  upon  which  the  obligation  to  make 
the  annual  return  of  services  was  founded,  the  medium  between  the 
two  extremes  was  adopted;  that  as  the  enjoyment  of  the  land  was 
the  consideration  for  the  services,  the  return  ought  always  to  be 
made  according  to  the  proportion  of  the  land,  which  the  tenant 
continued  in  the  possession  and  enjoyment  of.  But  in  the  case  of 
a  rent-charge,  when  the  grantee  purchases  parcel  of  the  land,  the 
whole  rent  is  extinguished,  because  there  is  no  feudel  dependency 
between  the  grantor  and  the  grantee  by  the  deed  of  grant,  which 
created  the  rent-charge,  as  there  was  by  the  feudal  donation  which 
created  the  rent-service.  And,  therefore,  as  these  grants  were  of  no 
benefit  to  the  public,  and  afforded  no  addition  of  strength  or  pro- 
tection to  the  kingdom,  the  law  carries  them  into  execution  only 
so  far  as  the  rent  could  take  effect,  according  to  the  original  inten- 
tion of  it;  and,  therefore,  if  the  grantee  had  wilfully,  by  his  own  act 
prevented  the  operation  of  the  grant  according  to  the  original  inten- 
tion of  it,  the  whole  grant  was  to  determine.     And  as  a  rent-charge 


92  ALLODIAL    AND    FEUDAL   PROPERTY    IN    LAND.       [PART  I. 

issues  out  of  every  part  of  the  land,  and  consequently  every  part  of 
the  land  is  subject  to  a  distress  for  the  whole  rent,  therefore,  when 
the  grantee  purchases  part  of  the  land,  it  is  become  impossible  by 
his  own  act,  that  the  grant  should  operate  in  that  manner,  because 
it  is  absurd  that  the  grantee  should  distrain  his  own  lands,  or  bring 
an  assize  against  himself.  Gilbert  on  Rents,  152-3-4,  3  Cruise  Dig. 
tit.  28,  Rents,  ch.  3,  sec.  14.  But  rent-service  being  something  given 
by  way  of  retribution,  to  the  landlord  for  the  land  demised  by  him 
to  the  tenant,  and  the  obligation  of  the  latter  to  pay  the  rent  arising 
from  his  having  enjoyed  the  land  under  a  contract  with  his  landlord, 
it  is  reasonable  that  the  extent  of  his  obligation  to  pay  should  be 
regulated  by  the  extent  of  his  enjoyment;  and,  therefore,  it  is  that 
if  he  be  legally  deprived  of  the  enjoyment  of  part  of  the  land 
demised,  he  shall  be  released  from  the  rent  only  in  proportion  to 
the  value  of  the  land  evicted.  And  in  no  case  will  an  eviction  of 
part  of  the  demised  premises,  where  the  tenant  continues  to  enjoy 
the  residue  thereof,  discharge  him  from  the  payment  of  the  whole 
rent,  unless  it  be  by  the  tortious  act  of  the  landlord  himself,  who 
shall  forfeit  all  right  to  receive  it  in  such  case,  as  long  as  he  prevents 
the  tenant  against  his  will,  from  occupying  and  enjoying  any  part  of 
the  land.  Gilb.  on  Rents,  147  ;  10  Co.  128  a;  1  Roll.  Abr.  235  ;  Dyer, 
56;  Co.  Litt.  148  b;  1  Ventr.  277;  Gilb.  on  Rents,  178-9.  *  *  * 
I  have  now  presented  my  views  in  regard  to  the  questions  involved 
in  this  case;  and  the  reasons  which  have  determined  me  in  coming 
to  the  decision  adopted  by  the  court,  to  wit,  that  the  release  is  only 
an  extinguishment  of  so  much  of  the  rent  as  may  be  equal  to  the 
comparative  value  of  the  ground  bought  by  Mr.  Smith  of  the  plain- 
tiff, at  the  time  of  the  sale  thereof;  and  the  defendant  is  entitled  to 
recover  the  residue  of  the  rent  due  at  the  time  of  the  distress.  This 
apportionment,  however,  can  only  be  made  by  a  jury;  Hodgkins  v. 
Rohson,  1  Ventr.  276,  s.  c.  Pollex,  141;  Fish  v.  Campion,  1  Roll.  Abr. 
237 ;  and  as  the  verdict  found  by  the  jury  does  not  provide  for  it,  the 
matter  will  have  to  be  submitted  to  another  jury,  unless  tht  parties 
will  agree  to  take  the  price  mentioned  in  the  deed  from  Mr.  Reed  to 
Mr.  Ingersoll,  as  the  value  of  the  whole  of  ground  subject  to  the 
ground-rent,  at  the  time  the  release  was  given,  and  the  price  men- 
tioned in  the  deed  from  Mr.  Ingersoll  to  Mr.  Smith,  as  the  value  of 
the  part  released  from  the  rent.  If  this  be  agreed  to,  the  whole  case 
he  settled   now;  otherwise  the  verdict  must  be  set  aside  and  a 

Venire  de  novo  awarded.1 

'As  10  the  present  existence  of  tenure  in  Pennsylvania  see  Wallace  v. 
Harmstad,  44  Pa.  492  (18M),  and  the  comment  thereon  in  Gray's  "  Rule  Against 
Perpetui  26.  —  Ed, 


CHAPTER  VI. 
Legal  and  Equitable   Property  in  Land. 

JAQUES  v.  TRUSTEES  OF  M.  E.  CHURCH. 

17  Johnson  (N.  Y.),  548.  —  1820. 

Appeal  from  the  Court  of  Chancery.  Mary  Jaques,  deceased, 
was  the  wife  of  appellant,  John  D.  Jaques.  Prior  to  her  marriage, 
being  the  owner  of  a  large  amount  of  property,  a  marriage- 
settlement  was  made,  by  which  the  said  Mary  conveyed  all  her  real 
and  personal  estate  to  one  Cruger  to  the  use  of  said  Mary,  until  the 
marriage  should  take  place  and  after  the  marriage  for  her  sole  and 
separate  use,  free  from  the  control  of  her  husband  and  at  her  absolute 


"Ta 


disposal.  Mrs.  Jaques  afterwards  conveyed  her  interest  to  Robert 
Jaques  upon  certain  trusts  —  among  other  things  to  pay  over  one- 
third  after  her  decease  to  the  Trustees  of  the  M.  E.  Church.  This  _ 
is  a  bill  for  an  accounting  against  John  D.  Jaques  who  is  alleged  to 
have  obtained  for  his  own  use  a  considerable  part  of  his  wife's  prop- 
erty, real  and  personal,  during  her  life,  with  her  consent  and  for  his 
own  use. 

Spencer,  Ch.  J.  *  *  *  It  appears  that  Mrs.  Jaques  was  the 
owner  of  considerable  real  and  personal  estate;  and  it  does  not  admit 
of  a  doubt  that  her  object  in  making  the  deed  of  settlement,  was  to 
guard  against  the  legal  effects  of  a  marriage,  which,  by  operation  of 
law,  would  divest  her  absolutely  of  her  personal  estate,  and  take 
from  her,  during  the  coverture,  all  control  over  her  real  estate.  Her 
motives  could  not  be  to  guard  against  herself,  but  to  retain  dominion 
over  her  estate,  and  to  prevent  her  intended  husband  from  inter- 
meddling with  her  estate  any  further  than  she  was  pleased  to  allow. 

The  deed  of  settlement  is  upon  the  trust,  that  the  trustee  should 
permit  her  to  hold,  enjoy  and  let  the  premises  conveyed,  and 
receive  and  take  the  rents  and  profits,  and  that  her  receipts 
should  alone  be  sufficient  discharges;  so  that  the  same  should 
not  be  subject  to  the  debts,  control  or  intermeddling  of  her 
intended  husband,  but  should  be  to  the  only  use,  benefit  and 
disposal  of  her,  during  her  natural  life,  and  then  to  the  use  of  those 
to  whom  she  should  grant  or  devise  the  same,  by  her  last  will 
and  testament,  lawfully  executed.     The    question  is,  whether  Mrs. 

[93] 


94  LEGAL   AND    EQUITABLE    PROPERTY   IN   LAND.       [PART  l- 

Jaques,  with  respect  to  her  estate,  is  not  be  regarded  in  a  court  of 
equity  as  a  feme  sole,  and  may  not  dispose  of  it  as  she  pleases,  with- 
out regard  to  her  trustee;  there  being  nothing  in  the  deed  of  settle- 
ment requiring  the  consent  or  concurrence  of  her  trustee,  nor  any 
negation  of  an  unlimited  power  of  disposition  of  the  estate  by  her. 

I  have  examined  this  case  with  the  unfeigned  respect  which 
I  always  feel  for  the  learned  chancellor  who  has  denied  the  right 
of  Mrs.  Jaques  to  dispose  of  her  estate  without  the  consent  or 
concurrence  of  her  trustee;  and  I  am  compelled  to  dissent  from  his 
opinion  and  conclusions.  From  the  year  1740  until  1793  (with 
the  single  exception  of  the  opinion  of  Lord  Bathurst  in  Hulme  v. 
Tenant,  which  occurred  in  1778,  and  in  which  case  a  rehearing  was 
granted  by  Lord  Thurlow  and  the  opinion  reversed),  there  is  an 
unbroken  current  of  decisions,  that  a  feme  covert,  with  respect  to  her 
separate  estate,  is  to  be  regarded  in  a  court  of  equity  as  a.  feme  sole, 
and  may  dispose  of  her  property  without  the  consent  or  concurrence 
of  her  trustee,  unless  she  is  specially  restrained  by  the  instrument 
under  which  she  acquires  her  separate  estate.     *     *     * 

The  mistake  into  which  I  think  the  chancellor  has  fallen  consists 
in  considering  Mrs.  Jaques  restrained  from  disposing  of  her  estate 
in  any  other  way  than  that  mentioned  in  the  deed  of  settlement.  The 
cases,  in  my  apprehension,  are  clearly  opposed  to  this  distinction ;  and 
I  am  entirely  satisfied  that  the  established  rule  in  equity  is,  that 
when  a  feme  covert,  having  separate  property,  enters  into  an  agree- 
ment and  sufficiently  indicates  her  intention  to  affect  by  it  her 
separate  estate,  when  there  is  no  fraud  or  unfair  advantage  taken  of 
her,  a  court  of  equity  will  apply  it  to  the  satisfaction  of  such 
engagement.     *     *     * 

This  is  the  first  case  in  which  the  power  of  a  married  woman  hav- 
ing separate  property,  to  dispose  of  it  at  her  will  and  pleasure,  when 
not  expressly  restrained  in  the  mode  of  exercising  that  will,  has 
xarisen  in  our  courts.  I  confess  that  my  partialities  in  favor  of  mar- 
riage settlements  are  not  so  strong  as  to  induce  my  desire  to  see  the 
law  altered.  Generally  speaking,  the  rules  of  the  common-law, 
which  give  to  the  husband  all  the  wife's  personal  property,  and  the 
rents  and  profits  of  her  real  estate  during  coverture,  are  better 
calculated,  in  my  judgment,  to  secure  domestic  tranquility  and  hap- 
piness, than  settlements  securing  to  the  wife  a  property  separate 
from  and  independent  of  the  control  of  the  husband.  An  improvi- 
dent and  dissipated  husband  may  squander  his  wife's  property,  and 
redui  e  both  of  them  to  penury  and  distress.  On  the  other  hand, 
the  possession  by  the  wife  of  property,  independent  of  and  beyond 
the  control  of  the   husband,  would  be  likely  to  produce  perpetual 


CHAP.  VI.]   LEGAL  AND  EQUITABLE  PROPERTY  IN  LAND.    95 

feuds  and  contention.  Marriage  is  a  union  of  persons  and  interests, 
pro  bono  et  malo,  and  the  ancient  provisions  of  the  common  law  show 
forth,  in  our  own  country,  decisive  proof  of  its  benign  and  salutary 
influence.  I  have  all  along  intended  to  be  understood  that  the  dis- 
position by  the  wife  must  be  free,  neither  the  result  of  flattery,  nor 
of  force,  or  harsh  and  cruel  treatment;  and  in  the  present  case  there 
is  no  evidence  that  Jaques  treated  his  wife  with  unkindness,  or 
employed  any  censurable  means  to  induce  her  to  bestow  her  bounty 
on  him;  on  the  contrary,  the  evidence  is  that  he  uniformly  treated 
her  with  kindness  and  affection. 

It  necessarily  results  from  the  power  which  I  suppose  Mrs.  Jaques 
to  have  had  over  her  property,  that  she  might  give  it  away,  without 
any  formal  act,  in  the  same  manner  as  though  she  had  been  sole; 
and  her  agreement  that  the  family  expenses  were  to  be  borne  out  of 
her  estate,  especially  when  executed  by  her,  was  a  valid  act.  She 
was  well  situated  as  regards  property,  while  her  husband  was  in  quite 
moderate  circumstances.  She  chose,  after  the  marriage,  to  main- 
tain her  former  equipage,  and  the  husband  acquiesced  in  her  wishes. 
It  would  be  extremely  hard  and  unjust  to  throw  upon  him  the  charge 
of  her  establishment,  when  it  is  clear  that  she  meant  to  defray  the 
expense  of  it  herself.  My  opinion,  accordingly,  is  that  the  agree- 
ment is  valid,  and  that  the  husband  is  not  only  not  to  be  charged 
with  any  sums  of  money  expended  for  the  maintenance  of  the 
family,  but  that  he  is  to  be  allowed  for  all  advances  for  that  object; 
and  also  for  moneys  advanced  for  necessary  reparations  to  her 
estate.     *     *     * 

Decree  reversed. 


Kennedy,  J.,  in  PULLEN  v.  RIANHARD. 

1  Wharton  (Pa.),  514.  —  1836. 

The  chief  question  here  is  settled  by  the  principles  laid  down  in 
the  case  of  Lancaster  v.  Dolan,  1  Rawle,  231.  In  that  case,  the  con- 
veyance to  the  trustees  was  upon  trust  "  to  permit  the  party,  (who 
at  the  time  was  feme  sole,  but  contemplated  being  married),  to  use, 
improve,  occupy,  possess  and  enjoy;  and  to  receive  all  and  singular, 
the  rents,  issues  and  profits,"  and  it  was  considered  that  the  trus- 
tees took  the  estate  with  the  use  executed.  The  Chief  Justice  who 
delivered  the  opinion  of  the  Court,  says,  "  a  use  thus  limited  to 
any  other  than  a  married  woman  ox  feme  in  contemplation  of  mar- 
riage, would  be  executed;  but  it  is  immaterial  whether  the  trust  be 
to  pay  a  married  woman  the  profits,  or  to  permit  her  to  receive  them, 


g6  LEGAL   AND    EQUITABLE    PROPERTY    IN    LAND.      PART  I.] 

it  being  necessary  to  a  separate  provision,   that  the  legal  estate 
should  remain  in  the  trustees,  to  prevent  the  husband  from  taking 
the  profits,  and  defeating  the  very  object  of  the  conveyance."    It  is 
certainly  true,  that  a  distinction  has  been  made  between  a  devise  to 
a  person  to  pay  over  the  rents  and  profits  to  another,  and  a  devise 
in  trust  to  permit  another  to  receive  the  rents  and  profits.     In  the 
first  case   it  has  been   held  that  the  legal  estate  should   continue  in 
the  first  devisee,  so  that  he  might  perform  the  trust,  because  with- 
out having  the  control  of  the  estate  he  could  not  receive  the  rents 
and  pay  them  over  as  directed.     Neville  v.  Saunters,  i  Vern.  415. 
But  in  the  second  case,  it  has  been  adjudged  that  tne  legal  estate  is 
vested  by  the  statute  of  uses  in  the  person  who  is  to  receive  the 
rents.     Boughton  v.  Langley,    2   Ld.    Raym.    873.     This  distinction, 
however,  as  the  Chief  Justice  has  said  in  Lancaster  v.  Dolan,  does 
not  exist  in  the  case  of  a.  feme  covert,  where  the  estate  is  conveyed  or 
devised  to  trustees  for  her  separate  use.     The  courts  in  such  case 
will,  if  possible,  construe  the  grant  or  devise,  so  as  to  vest  the  legal 
estate  in  the  trustees,  for  the  purpose  of  carrying  into  execution,  in 
the  most  effectual  manner  practicable,  the  intention  of  the  donor. 
Harton  v.  Jfarlo/i,  7  Term.  Rep.  648;   1  Cruise's  Dig.  tit.  12,  Trust, 
ch.  1,  pi.  15,  page  456,  and  pi.  19,  page  457.     As  to  the  intention  of 
donor  in  this  case,  there  can  be  but  one  opinion  respecting  it.    It  is  the 
most  unequivocally  declared  to  be  to  give  the  wife  the  separate  use 
and  benefit  of  the  estate  during  her  natural  life,  without  subjecting 
it  to  the  control  of  her  husband,  or  to  liability  in  any  way  whatever, 
for  the  payment  of  his  debts.     This  being  the  intention  expressed 
in  the  deed,  it  is  manifest  that  it  would  be  entirely  defeated,  if  it 
were  to  be  held  that  the  use  was  executed  in  the  wife;  for  this  would 
be  putting  the  estate  under  the  control  and  direction  of  her  hus- 
band, so  as  to  enable  him  to  take  the  rents  in  despite  of  her,  and  to 
dispose  of  them  as  he  pleased.     The  design,  therefore,  of  the  donor 
can  only  be  carried  into  effect  by  considering  tht  legal  estate  as 
vested   under  the  deed   in  the  trustee.     That   this  was  intended  is 
still   further  indicated   by  the  clause  giving  the  wife  the  power  to 
dispose  of  it  for  the   benefit  of  herself  and  children,  which  requires 
the  trustees,  in  case  of  such  disposition  being  made  by  her,  to  exe- 
cute such  writing  as  should  be  required  by  law  to  carry  it  into  effect; 
which  could  be  of  no  avail,  and  was  unnecessary,  unless  he  thought 
he  was  investing  him  with  the  legal  estate. 


PART  II. 
Of  Land  as  the  Subject  of  Property. 


chapter  I. 
Subdivision   of    Land   for    Purposes    of   Ownership. 

I.  The  ordinary  and  usual  mode  of  subdivision.  Presumption  as  to 
ownership  of  the  underlying  strata  and  of  the  space  above  the 
surface.    Effect  of  this  rule  on  things  in  such  space. 

HOFFMAN  v.  ARMSTRONG. 
48  New  York,  201.  — 1872. 

Action  for  assault  and  battery.  Appeal  from  judgment  for 
plaintiff. 

Certain  branches  of  a  cherry  tree  on  Dr.  Hoffman's  land  overhang 
the  lands  of  defendant.  Plaintiff,  a  member  of  Dr.  Hoffman's 
family,  went  upon  the  line  fence  and  undertook  to  pick  the  cherries 
from  such  overhanging  limbs.  Defendant  forbade  her  and,  as  she 
persisted  in  her  attempt,  he  tried  to  prevent  her  by  force  and  did 
her  a  personal  injury. 

The  court  below  charged  the  jury,  that  "  every  person  upon  whose 
lands  a  tree  stands  owns  the  whole  of  that  tree,  notwithstanding 
portions  of  it  may  overhang  the  lands  of  another;  *  *  *  and  is 
entitled  to  all  the  fruit  growing  thereon,"  and  that  one  who  inter- 
feres forcibly  with  his  attempt  to  gather  the  fruit  is  a  wrongdoer. 
Defendant  excepted  to  this  and  asked  the  judge  to  charge  in  sub- 
stance that  the  limbs  of  the  tree  overhanging  the  lands  of  defendant 
belonged  to  him  and  that  he  was  entitled  to  the  fruit  thereon  and 
had  a  right,  by  the  use  of  all  necessary  force,  to  prevent  plaintiff 
from  picking  it.     This  was  refused  and  defendant  excepted. 

Lott,  Ch.  C.  — The  only  material  question  presented  in  this  case 
is  whether  the  owner  of  land  overhung  by  the  branches  of  a  fruit 
tree  standing  wholly  on  the  land  of  an  adjoining  owner  is  entitled 
to  the  fruit  growing  thereon. 

LAW  OF  PROP.  IN  LAND  —  J  [qj] 


98  SUBDIVISION    OF   LAND.  [PT.  II.  CH.  I. 

The  defendant  claims  that  the  ownership  of  land  includes  every- 
thing above  the  surface,  and  bases  his  claim  on  the  maxim  of  the 
law,  "  Cujus  est  solum  ejus  est  usque  ad  caelum, "  and  that,  consequently, 
he  was  the  owner  of  the  overhanging  branches  and  the  fruit  thereon. 
The  general  rule  unquestionably  is,  that  land  hath  in  its  legal  signi- 
fication an  indefinite  extent  upward,  including  everything  terrestrial, 
not  only  the  ground  or  soil,  but  everything  which  is  attached  to  the 
earth,  whether  by  the  course  of  nature,  as  trees,  herbage,  and  water, 
or  by  the  hands  of  man,  as  houses  and  other  buildings.  See  Co. 
Litt.  4  a;  2  Black.  Com.  iS;  3  Kent's  Com.  p.  401;  2  Bouvier's  Ins. 
sec.  1570. 

This  rule,  while  it  entitles  the  owner  of  the  land  to  the  right  to 
it,  and  to  the  exclusive  use  and  enjoyment  of  all  the  space  above  it, 
and  to  erect  any  superstructure  thereon  that  he  may  see  fit  —  and 
no  one  can  lawfully  obstruct  it  to  his  prejudice  —  yet  if  an  adjoining 
owner  should  build  his  house  so  as  to  overhang  it,  such  an  encroach- 
ment would  not  give  the  owner  of  the  land  the  legal  title  to  the  part 
so  overhanging.  It  would  be  a  violation  of  his  right,  for  which  the 
law  would  afford  an  adequate  remedy,  but  would  not  give  him  an 
;ownership  or  right  to  the  possession  thereof.  See  Aiken  v.  Benedict, 
39  Barb.  400. 

Although  different  opinions  have  been  held  as  to  the  rights  of 
owners  of  adjoining  land  in  trees  planted,  the  bodies  of  which  are 
wholly  upon  that  of  one,  while  the  roots  extend  and  grow  into  that 
of  the  other  and  derive  nourishment  therefrom,  it  was  considered  by 
Allen,  J.,  in  giving  the  opinion  of  the  Court  in  Dubois  v.  Beaver,  25 
N.  Y.  Rep.  123,  etc.,  that  the  tree  is  wholly  the  property  of  him 
upon  whose  land  the  trunk  stands.  This  principle  is  sustained  in 
)  Masters  v.  Bo/lie,  2  Rol.  Rep.  141;  Holder  v.  Coates,  1  Moody  & 
Malkin,  112,  22  E.  C.  L.  R.  264. 

The  ground  or  reason  assigned  in  those  cases  for  holding  that  the 
owner  of  land  on  which  no  part  of  a  tree  stands,  but  into  which  the 
roots  extend,  has  any  interest,  is  that  the  tree  derives  its  nourish- 
ment from  both  states,  and  not  the  ground  or  maxim  on  which  the 
defendant's  claim  is  based. 

\\ '<•  have  not  been  referred  to  any  case  showing  that  where  no 
I  tart  of  a  tree  stood  on  the  land  of  a  party,  and  it  did  not  receive  any 
nourishmenl  therefrom,  that  he  had  any  right  therein,  and  it  is  laid 
down  in  Bouvier's  Institutes  (section  1573),  that  if  the  branches  of  ,1 
tree  only  overshadow  the  adjoining  land,  and  the  roots  do  not  enter 
into  it,  tli'-  tree  wholly  belongs  to  the  estate  where  the  roots  grow 
See  also  Masters  v.  /'<>lli<\  2  Rol.  Rep.  141;  Waterman  v.  'J'opcr,  1 
Ld.    Raymond,  737. 


I.]  MODE   OF   SUBDIVISION.  99 

The  rule  or  maxim  giving  the  right  of  ownership  to  everything 
above  the  surface  to  the  owner  of  the  soil  has  full  effect  without 
extending  it  to  anything  entirely  disconnected  with  or  detached  from 
the  soil  itself. 

It  follows,  from  the  views  above  expressed,  that  the  ruling  of  the 
judge  at  the  Circuit  was  right,  and  the  judgment  appealed  from  must 
be  affirmed,  with  costs. 

Judgment  affirmed.1 


GRANDONA  v.  LOVDAL. 

70  California,  161. — 1886. 

Action  to  compel  defendant  to  remove  a  certain  line  of  trees  on 
or  near  the  boundary  of  his  land  and  lands  of  plaintiff  and  to  recover 
damages  alleged  to  have  been  caused  by  their  existence  during  the 
preceding  four  years.  Defendant  demurred  to  the  complaint  on  the 
grounds  that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action;  that  several  causes  of  action  were  improperly  joined  and  not 
separately  stated,  and  that  it  was  ambiguous,  unintelligible  and 
uncertain  as  not  specifically  stating  the  amount  of  the  several  items 
of  damage.  Demurrer  sustained  and  judgment  for  defendant. 
Plaintiff  appeals. 

McKinstry,  J.  — The  court  below  sustained  a  demurrer  to  the 
complaint.  "  Trees  whose  branches  extend  over  the  land  of  another 
are  not  nuisances,  except  to  the  extent  to  which  the  branches  over- 
hang the  adjoining  land._  To  that  extent  they  are  nuisances,  and 
the  person  over  whose  land  they  extend  may  cut  them  off  or  have 
his  action  for  damages,  and  an  abatement  of  the  nuisance  against 
the  owner  or  occupant  of  the  land  on  which  they  grow,  but  he  may 
not  cut  down  the  tree,  neither  can  he  cut  the  branches  thereof 
beyond  the  extent  to  which  they  overhang  his  soil."  Wood  on 
Nuisances,  sec.  112,  citing  Commonwealth  v.  Blaisdell,  107  Mass.  234; 
Commonwealth  v.  McDonald,  16  Serg.  &  R.  390. 

So,  it  would  seem,  he  may  have  abated  the  roots  projecting  into 
his  soil,  at  least  if  he  has  suffered  actual  damage  thereby. 

The  general  demurrer  should  have  been  overruled.     *     *     * 

While  we  are  compelled  to  hold  that  the  complaint  is  not  subject 
to  general  demurrer,  nor  to  a  demurrer  for  misjoinder  of  actions, 
we  think  that  it  is  ambiguous  and  uncertain. 

Judgment  affirmed. 

1  See  also  Skinner  v.   Wilder  reported  infra,  p.  154.  —  Ed. 


IOO  SUDIVISION    OF    LAND.  [PT.  II.   CH.  I. 

II.  There  may  be  longitudinal  as  well  as  vertical  subdivisions  for 
ownership. 

LORING  v.  BACON. 

4  Massachusetts,  575.  —  1808. 

Parsons,  C.  J. — The  plaintiff  declares  in  case  upon  several 
promises.  The  first  count  is  indebitatus  assumpsit  in  the  sum  of  eighty 
dollars,  according  to  the  account  annexed  to  the  writ,  the  items  of 
which  are  for  timber,  boards,  shingles,  nails  and  labor,  and  victual- 
ling the  workmen.  The  second  count  is  a  quantum  meruit  for  the 
same  items,  technically  supposed  to  be  different  but  similar.  The 
third  count  is  a  general  indebitatus  assumpsit  for  eighty  dollars  laid 
out  and  expended. 

The  facts  being  agreed  by  the  parties,  the  question  of  law  comes 
before  the  court  on  a  case  stated.  From  this  case  it  appears  that 
the  defendant  is  seized  in  fee  simple  of  a  room  on  the  lower  floor  of 
a  dwelling-house  and  of  the  cellar  under  it;  and  that  the  plaintiff 
is  seized  in  fee  of  a  chamber  over  it,  and  of  the  remainder  of  the 
house;  that  the  roof  of  the  house  was  so  out  of  repair  that  unless 
repaired  no  part  of  the  house  could  be  comfortably  occupied;  that 
the  defendant,  though  seasonably  requested  by  the  plaintiff,  refused 
to  join  with  him  in  repairing  it;  and  the  plaintiff  then  made  the 
necessary  repairs,  and  has  brought  this  action  to  recover  damages 
for  her  refusal  to  join  in  the  repairs.  It  is  also  agreed  that  the  parties 
had  from  time  to  time  repaired  their  respective  parts  of  the  house 
at  their  several  expense.  And  the  question  submitted  to  the  court 
is,  whether  the  plaintiff  can  recover  in  this  action. 

This  is  an  action  of  the  first  impression.  No  express  promise  is 
admitted;  but  if  there  is  a  legal  obligation  on  the  defendant  to  con- 
tribute to  these  repairs,  the  law  will  imply  a  promise. 

We  have  no  statute,  nor  any  usage  upon  this  subject,  and  must 
apply  to  the  common  law  to  guide  us. 

Although  in  the  case  the  parties  consider  themselves  as  severally 
seized  of  different  parts  of  one  dwelling-house,  yet  in  legal  contem- 
plation each  of  the  parties  has  a  distinct  dwelling-house  adjoining 
together,  the  one  being  situated  over  the  other.  The  lower  room 
and  the  cellar  are  the  dwelling-house  of  the  defendant.  The  cham- 
ber, roof,  and  other  parts  of  the  edifice  are  the  plaintiff's  dwelling- 
house.  And  in  this  action  it  appears  that,  having  repaired  his  own 
house,  he  calls  upon  her  to  contribute  to  the  expense,  because  his 
house  is  so  situated  that  she  derives  a  benefit  from  his  repairs,  and 
would  have  suffered  a  damage  if  he  had  not  repaired. 

Upon  a  very  full  research  into  the  principles  and  maxims  of  the 


II. J  LONGITUDINAL   SUBDIVISIONS.  IOI 

common  law,  we  cannot  find  that  any  remedy  is  provided  for  the 
plaintiff. 

Houses  for  the  habitation,  and  mills  for  the  support  of  man  are  of 
high  consideration  at  common  law;  and  when  holden  in  common  or 
joint  tenancy,  remedies  are  provided  against  those  tenants  who  refuse 
to  join  in  necessary  reparation,  by  the  writ  de  reparatione  facienda. 
In  Co.  Lit.  56b,  it  is  said,  that  if  a  man  has  a  house  so  near  to  the 
house  of  his  neighbor,  and  he  suffers  it  to  be  so  ruinous  that  it  is 
like  to  fall  on  his  neighbor's  house,  he  may  have  a  writ  de  domo 
reparanda,  and  compel  him  to  repair  his  house.  In  Keilway,  98b,  pi. 
4,  there  is  a  case  reported,  in  the  time  of  Henry  the  Eighth,  in  which 
Fineux  and  Brudenell,  justices  of  the  king's  bench,  were  of  opinion 
that  if  a  man  have  a  house  underneath,  and  another  have  a  house 
over  it,  as  is  the  case  in  London,  the  owner  of  the  first  house  may 
compel  the  other  to  cover  his  house,  to  preserve  the  timbers  of  the 
house  underneath;  and  so  may  the  owner  of  the  house  above  compel 
the  other  to  repair  the  timbers  of  his  house  below;  and  this  by 
action  of  the  case.  But  some  of  the  bar  were  of  opinion  that  the 
owner  of  the  house  underneath  might  suffer  it  to  fall;  yet  all  agreed 
that  he  could  not  pull  it  down  to  destroy  the  house  above.  And  in 
Fitz.  N.  B.  296  there  is  a  writ  of  this  kind.  But  in  the  case  of 
Tenant  v.  Goldwin,  6  Mod.  314,  Lord  Holt  was  of  opinion,  that  this 
writ  was  by  virtue  of  a  particular  custom,  and  not  of  the  common 
law;  and  he  doubted  the  case  in  Keilway. 

But  there  is  unquestionably  a  writ  at  common  law  de  domo  repa- 
randa, the  form  of  which  we  have  Fitz.  N.  B.  295,  in  which  A.  is 
commanded  to  repair  a  certain  house  of  his  in  N.  which  is  in  danger 
of  falling,  to  the  nuisance  of  the  freehold  of  B.  in  the  same  town, 
and  which  A.  ought,  and  hath  been  used  to  repair,  etc.  This  writ, 
Fitzherbert  says,  lies,  when  a  man  who  has  a  house  adjoining  to 
the  house  of  his  neighbor,  suffers  his  house  to  lie  in  decay,  to  the 
annoyance  of  his  neighbor's  house.  And  if  the  plaintiff  recover, 
he  shall  have  his  damages;  and  it  shall  be  awarded  that  the  defend- 
ant repair,  and  that  he  be  restrained  until  he  do  it.  But  it  is  other- 
wise in  an  action  of  the  case;  for  there  the  plaintiff  can  recover 
damages  only.  And  there  appears  no  reasonable  cause  of  distinction 
in  the  cases,  whether  a  house  adjoined  to  another  on  one  side,  or 
above,  or  underneath  it. 

But  if  the  case  in  Keilway  is  law,  the  plaintiff  cannot  recover ;  for  by 
that  case  the  defendant  could  have  compelled  the  plaintiff  to  repair 
his  house,  or  compensate  her  in  damages  for  the  injury  she  had  sus- 
tained from  his  neglect  to  repair  it.  And  he  has  the  like  remedy 
against  her. 


102  SUBDIVISION    OF    LAND.  [PT.  II.  CH.  I. 

If  the  case  in  Keilway  is  not  law,  then  upon  analogy  to  the  writ  at 
common  law,  the  plaintiff  cannot  compel  the  defendant  to  contribute 
to  his  expenses  in  repairing  his  own  house.  But  if  his  house  be 
considered  as  adjoining  to  hers,  she  might  have  sued  an  action  of 
the  case  against  him,  if  he  had  suffered  his  house  to  remain  in  decay- 
to  the  annoyance  of  her  house. 

In  every  view  of  this  case,  there  is  no  legal  ground  on  which  the 
plaintiff's  action  can  be  supported.  We  do  not  now  decide  on  the 
authority  due  to  the  case  in  Keilway;  but  if  an  action  on  the  case 
should  come  before  us  founded  on  that  report,  it  will  deserve  a 
further  and  full  consideration.     The  plaintiff  must  be  called. 


CALDWELL  v.  FULTON. 
31  Pennsylvania  State,  475.  — 1858. 

Caldwell  sues  Fulton  for  digging  and  taking  away  20,000  bushels 
of  stone  coal  from  under  his  lands.  Caldwell's  ancestor  had  conveyed 
to  one  Greer  sixteen  acres  of  the  tract  and  "  also  the  full  right,  title 
and  privilege  of  digging  and  taking  away  stone  coal  to  any  extent 
the  said  Greer  may  think  proper  to  do,  or  cause  to  be  done  under 
any  of  the  land  now  owned  and  occupied  by  the  said  Caldwell;  pro- 
vided, nevertheless,  the  entrance  thereto,  and  the  discharge  there- 
from, be  on  the  foregoing  described  premises." 

Greer  afterwards  conveyed  an  undivided  half  of  the  sixteen  acres 
and  of  the  coal  to  a  third  party.  Fulton  has  taken  coal  under  a 
lease  from  the  owner  of  one  of  the  undivided  shares.  Plaintiff 
claims  that  the  sale  of  a  half  interest  extinguished  the  right  to  take 
coal.     Judgment  for  defendant.     Plaintiff  appeals  to  this  court. 

Strong,  J.  —  This  record  presents  the  same  question  which  was 
here  at  October  Term,  1855,  in  an  action  between  the  same  parties. 
The  writ  of  error  is  designed  to  bring  under  review  the  adjudication 
which  was  then  made.  At  that  time,  this  court  was  of  opinion  that 
the  deed  from  Caldwell  to  Greer  was  an  absolute  and  exclusive  con- 
veyance of  all  the  coal  under  the  grantor's  land,  and  not  a  mere 
license,  or  incorporeal  hereditament.  Such  a  construction  of  the 
deed  is  supposed  to  have  been  erroneous,  and  we  have  heard  an 
earnest  and  able  argument  in  support  of  the  opposite  interpretation. 

The  question  is  all-important  to  the  rights  of  the  parties;  for,  if 
the  interest  of  the  grantee  is  incorporeal,  and  not  exclusive,  it  is 
necessarily  indivisible;  and  (Ireer,  having  divided  it  by  his  own  act, 
by  alienation   of  part,  extinguished  it.     4  Co.  1;    Van   Rensselar  v. 


II.]  LONGITUDINAL   SUBDIVISIONS.  IO3 

Raddiffe,  10  Wend.  639.  On  the  other  hand,  if  the  deed  was  a  grant 
of  all  the  coal,  it  might  be  conveyed  without  extinction  of  the  right, 
either  in  entirety  or  in  parts.  The  deed  conveys  in  fee  two  tracts 
of  land,  and  in  its  granting  part,  after  describing  the  tracts  by 
metes  and  bounds,  adds,  "  also  the  full  right,  title,  and  privilege  of 
digging  and  taking  away  stone  coal,  to  any  extent  the  said  George 
Greer  may  think  proper  to  do,  or  cause  to  be  done,  under  any  of  the 
land  now  owned  and  occupied  by  the  said  James  Caldwell ;  provided, 
nevertheless,  the  entrance  thereto,  and  the  discharge  therefrom,  be 
on  the  foregoing  described  premises."  Then  follow  the  habendum 
and  covenants  of  warranty,  in  one  of  which  this  subject  of  the  grant 
is  called  "  the  aforesaid  right  to  the  stone  coal,"  and  in  the  other 
"  the  right  of  stone  coal  hereby  given."  The  consideration  men- 
tioned is  single,  for  the  entire  subject  conveyed  by  the  deed.  It  is 
to  be  observed  in  the  description  of  the  thing  granted,  that  there 
are  no  limits  fixed  upon  the  extent  to  which  coal  might  be  taken 
from  the  land  then  owned  and  occupied  by  the  grantor.  The 
grantee's  right  was  coextensive  with  his  will;  not  necessarily  to  be 
exercised  by  himself,  but  one  which  might  be  enjoyed  by  others 
whom  he  should  authorize.  No  form  of  words  other  than  those 
employed  could  have  given  him  larger  dominion. 

Coal  and  minerals  in  place  are  land.  It  is  no  longer  to  be  doubted 
that  they  are  subject  to  conveyance  as  such.  Nothing  is  more  com- 
mon in  Pennsylvania  than  that  the  surface  right  should  be  in  one 
man,  and  the  mineral  right  in  another.  It  is  not  denied,  in  such  a 
case,  that  both  are  landowners,  both  holders  of  a  corporeal  heredita- 
ment. Our  English  ancestors,  indeed,  found  difficulty  in  con- 
ceiving of  a  corporeal  interest  in  an  unopened  mine  —  separate 
from  the  ownership  of  the  surface  —  because  livery  of  seisin  was 
in  their  minds  inseparable  from  a  conveyance  of  land,  and  livery 
could  not  be  made  of  an  unopened  mine.  The  consequence  was, 
that  they  were  disposed  to  regard  such  rights  as  incorporeal,  though 
they  are  not  rights  issuing  out  of  land,  but  the  substance  itself.  In 
this  State,  however,  livery  of  seisin  is  supplied  by  the  deed  and  its 
registration,  and  there  is  nothing  incongruous  in  considering  a  grant 
of  the  substratum  a  grant  of  land,  as  much  as  is  a  conveyance  of  the 
surface  itself.  It  is  often  by  far  the  most  valuable,  and  sometimes 
embraces  all  for  which  the  land  is  worth  owning.  Even  in  England, 
so  long  ago  as  the  reign  of  James  I.,  it  was  held  that  ejectment 
would  lie  for  a  coal  mine.  Comynv.  Wheatly,  Cro.  Jac.  150.  It  was 
objected  that  it  was  beneath  the  soil,  and  that  an  habere  facias  could 
not  be  made  thereof;  but  the  objection  was  disallowed.  Yet,  eject- 
ment  cannot  be  sustained  for  an  incorporeal   hereditament,  except, 


104  SUBDIVISION    OF    LAND.  [PT.  II.  CU.  [. 

perhaps,  in  the  case  of  a  common  appendant  or  appurtenant.  With 
us,  unfettered  as  we  are  by  the  necessity  of  livery  of  seisin,  and 
abounding  in  mineral  districts,  I  am  not  aware  that  it  has  been 
seriously  doubted  that  the  ownership  of  a  coal  bed  or  seam  is  a  cor- 
poreal interest  in  land.  Cases  not  unfrequently  occur  in  which  the 
owner  of  lands  sells  merely  the  surface  right,  retaining  the  minerals 
which  lie  in  place  below  the  surface.  Now,  as  his  whole  interest 
was  corporeal  before  the  sale,  and  as  by  his  deed  only  the  surface 
passed,  that  which  remains  ungranted  must  be  corporeal.  This 
proposition  needs  no  further  argument,  and  it  has  not  been  ques- 
tioned in  the  discussion  before  us.  In  Turner  v.  Reynolds,  n  Harris, 
199,  a  plaintiff  in  ejectment  was  allowed  to  recover  a  coal  mine 
which  he  had  described  in  his  writ  as  land,  and  this,  though  his  title 
was  under  a  conveyance  to  him,  not  of  the  tract  of  land,  but  of  the 
coal. 

If,  then,  the  ownership  of  the  coal  or  other  minerals  in  a  tract  of 
land  may  be  vested  in  one  person,  while  the  right  to  the  surface 
belongs  to  another,  the  next  inquiry  is,  by  what  words  it  may  be 
granted.  There  are  two  modes  in  which  the  subject-matter  of  a 
deed  may  be  described,  both  equally  potential.  The  one  is  by  a 
description  of  the  thing  itself,  as  of  land  by  metes  and  bounds,  or 
by  a  known  name,  and  the  other  is  by  a  designation  of  its  usufruct, 
or  of  the  dominion  over  it.  Thus,  a  grant  of  the  rents,  issues  and 
profits  of  a  tract  of  land  is  uniformly  held  to  be  a  grant  of  the  land 
itself:  Co.  Litt.  4b.  Judgments  abound  to  this  effect  in  regard  to 
devises,  and  though  in  wills  and  deeds  the  rules  of  construction  differ 
relative  to  words  limiting  the  estate  granted,  yet  they  are  the  same 
of  words  describing  the  subject-matter  of  the  grant.  There  are  also 
cases  of  the  same  character  to  be  found  in  regard  to  deeds.  Thus, 
it  has  been  held  that  by  the  grant  of  a  boilery  of  salt  the  land  passes, 
for  that  is  the  whole  profit,  Co.  Litt.  4b;  or  a  mine  of  lead,  Id.  6a. 
So  by  the  grant  of  all  growing  trees,  Cro.  Eliz.  522.  See  also  4 
Mass.  266;  Fish  v.  Sawyer,  11  Conn.  545.  The  reason  is  that  the 
grant  of  a  thing  can  be  no  more  than  the  grant  of  the  full  and 
unlimited  use  of  it.  So,  too,  the  general  power  of  disposal  without 
liability  to  account  is  equivalent  to  ownership  itself,  it  being  the 
highest  attribute  of  ownership,  and  a  gift  of  the  one  necessarily 
carries  with  it  the  other.  This  is  the  doctrine  of  Morris  v.  P/iah-n, 
1  Watts,  389. 

Applying  these  principles  to  the  case  in  hand,  why  was  not  the 
deed  of  Caldwell  to  Greer  a  conveyance  of  the  coal  in  the  land 
owned  and  oc<  upied  by  the  grantor?  Because,  says  the  plaintiff  in 
error,  it   is   not  a  grant  of  the  thing  itself,  but  of  a  right  to  take  it 


II.]  LONGITUDINAL   SUBDIVISIONS.  105 

and  until  it  is  seized  or  taken  the  property  in  the  thing  remains  in 
the  grantor.  But  if  the  conveyance  of  the  whole  use  of  a  thing,  and 
of  the  absolute  dominion  over  it,  is  a  grant  of  the  thing  itself,  only 
differing  in  the  mode  of  describing  the  subject,  it  is  not  easy  to  see 
what  more  Caldwell  could  have  sold  than  he  did.  If  in  another 
form  of  words  he  had  described  the  coal  as  the  subject  of  the  grant, 
Greer  would  have  possessed  no  greater  beneficial  rights  than  were 
given  to  him  by  the  form  adopted.  The  ownership  of  the  coal  in 
the  ground  is  but  a  "  full  right,  title,  and  privilege  "  to  dig  and 
carry  it  away,  nothing  more,  nothing  less.  The  words  employed  in 
the  deed  express  absolute  dominion,  and  complete  enjoyment. 
These  constitute  property,  and  all  that  is  understood  in  pro- 
prietorship. 

Again,  says  the  plaintiff  in  error,  this  is  but  a  grant  of  a  right  to 
take  and  carry  away  part  of  the  profits,  and  that  while  a  grant  of  a 
right  to  take  all  the  rents,  issues,  and  profits  of  a  tract  of  land  is 
equivalent  to  a  conveyance  of  the  land  itself,  because  it  embraces 
their  whole  usufruct,  a  grant  of  a  right  to  take  part,  such  as  "  iron 
ore,  coal,"  or  "  minerals,"  is  not.  It  is  said  that  in  such  a  case 
the  grantee  can  only  take  in  common  with  the  grantor. 

The  argument  is  based  upon  a  misconception.  The  subject  alleged 
to  have  been  granted  here  is  not  the  tract  of  land,  but  the  coal  in  it, 
which,  as  we  have  seen,  is  capable  of  a  separate  conveyance,  and 
which  may  be  vested  in  one  person,  while  the  ownership  of  the  tract 
of  land,  as  such,  may  be  another's.  The  alleged  subjects  of  the 
grant  then  being  the  coal  in  the  land,  the  substratum,  the  argument 
is  inapplicable.  The  whole  usufruct  of  that,  as  well  as  the  entire 
dominion  over  it,  was  granted.  The  deed  is  not  a  conveyance  of 
part  of  the  usufruct,  nor  of  the  usufruct  of  part  of  the  coal,  but  of 
the  entire  enjoyment.  As  already  said,  there  was  no  limit  to  the 
grantee's  right  but  his  own  will.  He  could  take  out  coal  to  any 
extent.  He  could  cause  it  to  be  taken  out  to  any  extent,  and  at  all 
times  under  any  of  the  land.  He  was  accountable  to  no  one.  His 
entrance  to  it  and  his  exit  from  it  were,  indeed,  required  to  be  on 
his  own  land;  but  the  right  to  take  the  coal  itself  was  absolutely 
unlimited.  It  would  seem,  therefore,  that,  according  to  well-estab- 
lished rules  of  construction,  the  deed  of  Caldwell  to  Greer  was  a 
conveyance  of  the  coal  itself,  and  not  of  a  mere  easement  or  incor- 
poreal hereditament. 

It  is  contended,  however,  that  such  a  construction  is  in  conflict 
with  the  authorities,  and  we  are  referred  to  Lord  Mountjoy's  case  as 
the  leading  and  principal  one.  [After  reviewing  this  case  (Anderson 
307)  and  Chetham  v.  Williamson,  If.  East,  J^.96j  Doe  v.  Wood,  2  Barn. 


106  SUDIVISION    OF   LAND.  [PT.  II.   CH.  I. 

&  Aid.  719,  and  Grubb  v.  Bayard,  2  Wall.  Jr.  81,  the  opinion  proceeds 
as  follows]  : 

These  are  all  the  cases  adduced  to  sustain  the  doctrine  that  a  con- 
veyance of  a  right  to  dig,  take,  and  carry  away  the  coal  or  minerals 
in  a  tract  of  land,  though  the  grant  be  unlimited  in  quantity,  time, 
or  purpose  for  which  the  minerals  may  be  taken,  conveys  no  interest 
in  the  coal  or  minerals  until  they  are  taken,  passes  only  an  incor- 
poreal hereditament.  None  of  them  were  decided  upon  the  ground 
of  any  supposed  distinction  between  a  right  to  take  all  the  coal  and 
carry  it  away,  and  a  right  to  the  coal  itself.  They  are  all  cases  in 
which  there  was  no  unrestricted  power  of  taking  and  disposition  con- 
ferred upon  the  grantee.  The  coal  or  minerals  was  to  be  taken  either 
for  a  limited  purpose,  or  in  restricted  quantities,  and  generally  was 
not  to  be  paid  for  until  taken.  And  in  most  of  them  it  is  easy  to 
see  that  the  supposed  necessity  of  livery  of  seisin,  in  order  to  pass 
a  corporeal  interest  in  land,  was  a  controlling  consideration  in  the 
minds  of  the  judges.  Even  in  Grubb  v.  Bayard,  it  seems  not  to 
have  been  without  influence.  The  impossibility  of  making  livery  is, 
however,  in  Pennsylvania,  no  reason  for  refusing  to  give  a  construc- 
tion to  a  deed  accordant  with  the  intention  of  the  parties.  When 
the  intent  is  to  give  the  entire  usufruct  and  power  of  disposal,  the 
legal  title  must  be  held  to  pass.  Even  in  England,  livery  of  seisin 
is  no  longer  indispensable  to  the  grant  of  a  corporeal  hereditament. 
Unopened  mines  may  be  conveyed,  and  the  grantee  takes  more  than 
a  right  issuing  out  of  land,  or  exercisable  therein.  He  takes  the 
mines  themselves.  In  Stoughton  v.  Leigh,  4  Taunt.  402,  a  widow 
was  held  entitled  to  dower  of  mines,  not  only  in  lands  in  which  her 
husband  had  been  seised  in  his  lifetime  and  during  coverture,  but 
also  in  those  which  were  in  the  lands  of  other  persons,  the  minerals 
or  substratum  of  which  had  been  conveyed  to  him.  It  was  also 
ruled,  that  in  assigning  her  dower,  the  sheriff  should  set  off  to  her 
not  one-third  of  the  profits  but  one-third  of  the  mines  themselves, 
and  that  the  partition  might  be  made  either  by  metes  and  bounds,  or 
by  directing  separate  alternate  periods  of  enjoyment. 

It  is  not  strange,  therefore,  that  it  had  been  held  in  this  State, 
before  the  controversy  between  these  parties  was  first  here,  that  an 
unrestricted  right  to  take  and  carry  away  all  the  coal  in  a  tract  of 
land  is  a  corporeal  right  and  exclusive.  In  Benson  v.  The  Miners' 
Bank,  8  Harris,  370,  we  have  this  case:  Reese  was  seised  of  two 
undivided  third  parts  of  a  tract  of  land,  and  of  one-fifth  of  all  the 
fossil  coal  under  it.  He  made  a  deed  for  the  tract  to  Kepner,  con- 
taining the  clause  "  excepting  and  for  ever  reserving  the  liberties 
and   privileges  for  the   heirs  and    legal   representatives  of    Samuel 


II. J  LONGITUDINAL    SUBDIVISIONS.  IO7 

Potts,  deceased  (of  whom  he  was  one),  to  dig,  take,  and  carry  away 
all  the  stone  coal  that  is  or  may  hereafter  be  found  on  the  above 
described  tract  of  land."  The  judgment  of  this  court  was,  that  the 
deed  conveyed  no  part  of  the  stone  coal  to  the  grantee  of  the 
land.  Of  course,  it  remained  reserved  or  ungranted  as  a  corporeal 
hereditament. 

Thus,  after  a  careful  review  of  the  question,  we  are  constrained  to 
hold  that,  by  the  deed  from  Caldwell  to  Greer,  the  title  to  the  coal 
in  the  lands  then  owned  and  occupied  by  the  grantor  was  conveyed, 
and  not  a  mere  license  or  incorporeal  right.  Such  was  the  opinion 
of  this  court  in  1855,  when  the  same  deed  was  here  for  construction, 
and  the  very  able  argument  of  the  counsel  for  the  plaintiff  in  error 
has  failed  to  convince  us  that  the  court  was  then  mistaken.   *  *  * 

The  judgment  is  affirmed. 


CHAPTER  II. 
Constituents  and  Incidents  of   Land. 

I.  The  soil  and  accretions  thereto. 

i.  Accretions. 

DEERFIELD  v.  ARMS. 

17  Pickering  (Mass.),  41.  —  1835. 

Writ  of  entry  to  recover  a  parcel  of  land  formed  by  alluvial 
deposits  on  the  bed  and  margin  of  Deerfield  river. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court. — There  are 
several  points  in  this  cause  to  which  it  seems  proper  to  allude  in  the 
outset,  and  upon  which  we  entertain  no  doubt. 

In  the  first  place  it  seems  very  clearly  settled  that  upon  all  rivers 
not  navigable  (and  all  rivers  are  to  be  deemed  not  navigable  above 
where  the  sea  ebbs  and  flows),  the  owner  of  land  adjoining  the  river 
is  prima  facie  owner  of  the  soil  to  the  central  line,  or  thread  of  the 
river,  subject  to  an  easement  for  the  public  to  pass  along  and  over 
it  with  boats,  rafts  and  river  craft.  This  presumption  will  prevail 
in  all  cases  in  favor  of  the  riparian  proprietor  unless  controlled  by 
some  express  words  of  description  which  exclude  the  bed  of  the 
river,  and  bound  the  grantee  on  the  bank  or  margin  of  the  river. 
In  all  cases,  therefore,  where  the  river  itself  is  used  as  a  boundary, 
the  law  will  expound  the  grant  as  extending  adfihan  medium  aqua. 

We  also  consider  it  as  a  well-settled  principle  of  law  resulting  in 
part  from  the  former,  that  where  land  is  formed  by  alluvion,  in  a 
river  not  navigable,  by  slow  and  imperceptible  accretion,  it  is  the 
property  of  the  owner  of  the  adjoining  land,  who  for  convenience, 
and  by  a  single  term,  may  be  called  the  riparian  proprietor.  And 
in  applying  this  principle,  it  is  quite  immaterial  whether  this  alluvion 
forms  at  or  against  the  shore,  so  as  to  cause  an  extension  of  the 
shore  or  bank  of  the  river,  or  whether  it  forms  in  the  bed  of  the 
river  and  becomes  an  island.  And  where  an  island  is  so  formed  in 
the  bed  of  the  river  as  to  divide  the  channel  and  form  partly  on 
1  side  of  the  thread  of  the  river,  if  the  land  on  the  opposite 
sides  of  the  river  belong  to  different  proprietors,  the  island  will  be 

[108] 


I.  i.]  ACCRETIONS.  IO9 

divided  according  to  the  original   thread  of  the  river,  between  the 
rival  proprietors. 

This  view  of  the  subject  disposes  of  one  of  the  questions  of  fact 
in  relation  to  which  some  evidence  was  given;  namely,  whether  the 
alluvial  formation  in  controversy  was  separated  by  water  from  the 
eastern  bank  of  the  river,  claimed  by  the  demandants  as  riparian 
proprietors,  or  whether  the  newly  formed  land,  at  that  point,  extends 
quite  to  the  eastern  bank.  We  think  this  fact  entirely  immaterial  to 
the  rights  in  controversy  between  these  parties.  [The Judge  then 
discusses  the  title  of  Deerfield  to  the  lands  on  the  east  bank  of  the  river 
{deciding  in  favor  of  such  title)  and  the  principles  on  which  the  accretion 
is  to  be  divided  among  the  several  riparian  proprietor s.] 


GODDARD  v.  WINCHELL. 

86  Iowa,  71.  —  1892. 

Replevin  for  an  aerolite.     Appeal  from  judgment  for  plaintiff. 

Granger,  J.  —  The  District  Court  found  the  following  facts,  with 
some  others  not  important  on  this  hearing:  "  (1)  That  the  plaintiff, 
John  Goddard,  is,  and  has  been  since  about  1857,  the  owner  in  fee 
simple  of  the  north  half  of  section  No.  3,  in  township  No.  98,  range 
No.  25,  in  Winnebago  county,  Iowa,  and  was  such  owner  at  the  time 
of  the  fall  of  the  meteorite  hereinafter  referred  to.  (2)  That  said 
land  was  prairie  land,  and  that  the  grass  privilege  for  the  year  1890  was 
leased  to  one  James  Elickson.  (3)  That  on  the  second  day  of  May, 
1890,  an  aerolite,  passed  over  northern  and  northwestern  Iowa,  and 
the  aerolite,  or  fragment  of  the  same,  in  question  in  this  action, 
weighing,  when  replevied,  and  when  produced  in  court  on  the  trial 
of  this  cause,  about  sixty-six  pounds,  fell  onto  plaintiff's  land, 
described  above,  and  buried  itself  in  the  ground  to  a  depth  of  three 
feet,  and  became  imbedded  therein  at  a  point  about  twenty  rods 
from  the  section  line  on  the  north.  (4)  That  the  day  after  the 
aerolite  in  question  fell  it  was  dug  out  of  the  ground  with  a  spade  by 
one  Peter  Hoagland,  in  the  presence  of  the  tenant,  Elickson;  that 
said  Hoagland  took  it  to  his  house,  and  claimed  to  own  same,  for 
the  reason  that  he  had  found  same  and  dug  it  up.  (5)  That  on  May 
5,  1890,  Hoagland  sold  the  aerolite  in  suit  to  the  defendant,  H.  V. 
Wincheli,  for  $105,  and  the  same  was  at  once  taken  possession  of  by 
said  defendant,  and  that  the  possession  was  held  by  him  until  same 
was  taken  under  the  writ  of  replevin  herein;    that  the  defendant 


IIO      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.  CH.  II. 

knew  at  the  time  of  his  purchase  that  it  was  an  aerolite,  and  that  it 
fell  on  the  prairie  south  of  Hoagland's  land.  .  .  .  (10)  I  find 
the  value  of  said  aerolite  to  be  one  hundred  and  one  dollars  ($101), 
as  verbally  stipulated  in  open  court  by  the  parties  to  this  action; 
that  the  same  weighs  about  sixty-six  pounds,  is  of  a  black,  smoky 
color  on  the  outside,  showing  the  effects  of  heat,  and  of  a  lighter 
and  darkish  gray  color  on  the  inside;  that  it  is  an  aerolite,  and  fell 
from  the  heavens  on  the  second  of  May,  1890;  and  that  a  member 
of  Hoagland's  family  saw  the  aerolite  fall,  and  directed  him  to  it." 
As  conclusions  of  law,  the  District  Court  found  that  the  aerolite 
became  a  part  of  the  soil  on  which  it  fell;  that  the  plaintiff  was  the 
owner  thereof;  and  that  the  act  of  Hoagland  in  removing  it  was 
wrongful.  It  is  insisted  by  the  appellant  that  the  conclusions  of  law 
are  erroneous;  that  the  enlightened  demands  of  the  time  in  which  we 
live  call  for,  if  not  a  modification,  a  liberal  construction,  of  the 
ancient  rule  "  that  whatever  is  affixed  to  the  soil  belongs  to  the 
soil,"  or  the  more  modern  statement  of  the  rule,  that  "  a  permanent 
annexation  to  the  soil  of  a  thing  in  itself  personal  makes  it  a  part 
of  the  realty. ' '  In  behalf  of  appellant  is  invoked  a  rule  alike  ancient 
and  of  undoubted  merit —  "  that  of  title  by  occupancy  "  — and  we 
are  cited  to  the  language  of  Blackstone,  as  follows:  "  Occupancy 
is  the  taking  possession  of  those  things  which  before  belonged  to 
nobody;  "  and  "  Whatever  movables  are  found  upon  the  surface  of 
the  earth,  or  in  the  sea,  and  are  unclaimed  by  any  owner,  and  sup- 
posed to  be  abandoned  by  the  last  proprietor,  and  as  such  are 
returned  into  the  common  stock  and  mass  of  things,  and,  therefore, 
they  belong,  as  in  a  state  of  nature, to  the  first  occupant  or  finder." 
In  determining  which  of  these  rules  is  to  govern  in  this  case,  it  will 
be  well  for  us  to  keep  in  mind  the  controlling  facts  giving  rise  to 
the  different  rules,  and  note  wherein,  if  at  all,  the  facts  of  this  case 
should  distinguish  it.  The  rule  sought  to  be  avoided  has  alone 
reference  to  what  becomes  a  part  of  the  soil,  and  hence  belongs  to 
the  owner  thereof,  because  attached  or  added  thereto.  It  has  no 
reference  whatever  to  an  independent  acquisition  of  title,  that  is 
to  an  acquisition  of  property  existing  independent  of  other  property. 
The  rule  invoked  has  reference  only  to  property  of  this  independent 
character,  for  it  speaks  of  movables  "  found  upon  the  surface  of  the 
earth  or  in  the  sea."  The  term  "  movables  "  must  not  be  con- 
strued  to  mean  that  which  can  be  moved,  for,  if  so,  it  would  include 
much  known  to  be  realty;  but  it  means  such  things  as  are  not 
rally  parts  of  earth  or  sea,  but  are  on  the  one  or  in  the  other. 
Animals  exist  on  the  earth  and  in  the  sea,  but  they  are  not,  in  a 
proper  sense,  parts  of  either,     If  we  look  to  the  natural  formation 


I.  i.]  ACCRETIONS.  I  I  I 

of  the  earth  and  sea,  it  is  not  difficult  to  understand  what  is  meant 
by  "  movables"  within  the  spirit  of  the  rule  cited.  To  take  from 
the  earth  what  nature  has  placed  there  in  its  formation,  whether  at 
the  creation  or  through  the  natural  processes  of  the  acquisition  and 
depletion  of  its  particular  parts,  as  we  witness  it  in  our  daily  observa- 
tions, whether  it  be  the  soil  proper  or  some  natural  deposit,  as  of 
mineral  or  vegetable  matter,  is  to  take  a  part  of  the  earth  and  not 
movables. 

If,  from  what  we  have  said,  we  have  in  mind  the  facts  giving  rise 
to  the  rules  cited,  we  may  well  look  to  the  facts  of  this  case  to 
properly  distinguish  it.  The  subject  of  the  dispute  is  an  aerolite  of 
about  sixty-six  pounds  weight,  that  "  fell  from  the  heavens  "  on  the 
land  of  the  plaintiff,  and  was  found  three  feet  below  the  surface.  It 
came  to  its  position  in  the  earth  through  natural  causes.  It  was 
one  of  nature's  deposits,  with  nothing  in  its  material  composition  to 
make  it  foreign  or  unnatural  to  the  soil.  It  was  not  a  movable  thing 
"  on  the  earth."  It  was  in  the  earth,  and  in  a  very  significant  sense 
immovable;  that  is,  it  was  only  movable  as  parts  of  earth  are  made 
movable  by  the  hand  of  man.  Except  for  the  peculiar  manner  in 
which  it  came,  its  relation  to  the  soil  would  be  beyond  dispute.  It 
was  in  its  substance,  as  we  understand,  a  stone.  It  was  not  of  a 
character  to  be  thought  of  as  "  unclaimed  by  any  owner,"  and, 
because  unclaimed,  "  supposed  to  be  abandoned  by  the  last  proprie- 
tor," as  should  be  the  case  under  the  rule  invoked  by  the  appellant. 
In  fact,  it  has  none  of  the  characteristics  of  the  property  contem- 
plated by  such  a  rule. 

We  may  properly  note  some  of  the  particular  claims  of  appellant. 
His  argument  deals  with  the  rules  of  the  common  law  for  acquiring 
real  property,  as  by  escheat,  occupancy,  prescription,  forfeiture,  and 
alienation,  which  it  is  claimed  were  all  the  methods  known,  barring 
inheritance.  We  need  not  question  the  correctness  of  the  statement, 
assuming  that  it  has  reference  to  original  acquisition,  as  distinct 
from  acquisitions  to  soil  already  owned  by  accretion  or  natural  causes. 
The  general  rules  of  the  law  by  which  the  owners  of  riparian  titles 
are  made  to  lose  or  gain  by  the  doctrine  of  accretions  are  quite 
familiar.  These  rules  are  not,  however,  of  exclusive  application  to 
such  owners.  Through  the  action  of  the  elements,  wind  and  water, 
the  soil  of  one  man  is  taken  and  deposited  in  the  field  of  another; 
and  thus  all  over  the  country,  we  may  say,  changes  are  constantly 
going  on.  By  these  natural  causes  the  owners  of  the  soil  are  giving 
and  taking  as  the  wisdom  of  the  controlling  forces  shall  determine. 
By  these  operations  one  may  be  affected  with  a  substantial  gain,  and 
another  by  a  similar  loss.     These   gains  are  of  accretion,  and   the 


112      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

deposit  becomes  the  property  of  the  owner  of  the  soil  on  which  it 
is  made. 

A  scientist  of  note  has  said  that  from  six  to  seven  hundred  of 
these  stones  fall  to  our  earth  annually.  If  they  are,  as  indicated  in 
argument,  departures  from  other  planets,  and  if  among  the  planets 
of  the  solar  system  there  is  this  interchange,  bearing  evidence  of 
their  material  composition,  upon  what  principle  of  reason  or  authority 
can  we  say  that  a  deposit  thus  made  shall  not  be  of  that  class  of 
property  that  it  would  be  if  originally  of  this  planet  and  in  the  same 
situation?  If  these  exchanges  have  been  going  on  through  the  count- 
less ages  of  our  planetary  system,  who  shall  attempt  to  determine 
what  part  of  the  rocks  and  formations  of  especial  value  to  the 
scientist  resting  in  and  upon  the  earth,  are  of  meteoric  acquisition, 
and  a  part  of  that  class  of  property  designated  in  argument  as 
"  unowned  things,"  to  be  the  property  of  the  fortunate  finder  instead 
of  the  owner  of  the  soil,  if  the  rule  contended  for  is  to  obtain?  It 
is  not  easy  to  understand  why  stones  or  balls  of  metallic  iron, 
deposited  as  this  was,  should  be  governed  by  a  different  rule  than 
obtains  from  the  deposit  of  boulders,  stones,  and  drift  upon  our 
prairies  by  glacier  action ;  and  who  would  contend  that  these  deposits 
from  floating  bodies  of  ice  belong,  not  to  the  owner  of  the  soil,  but 
to  the  finder?  Their  origin  or  source  may  be  less  mysterious,  but 
they,  too,  are  "  tell-tale  messengers  "  from  far-off  lands,  and  have 
value  for  historic  and  scientific  investigation. 

It  is  said  that  the  aerolite  is  without  adaptation  to  the  soil,  and 
only  valuable  for  scientific  purposes.  Nothing  in  the  facts  of  the 
case  will  warrant  us  in  saying  that  it  was  not  as  well  adapted  for  use 
by  the  owner  of  the  soil  as  any  stone,  or,  as  the  appellant  is  pleased  to 
dominate  it,  "  ball  of  metallic  iron."  That  it  may  be  of  greater 
value  for  scientific  or  other  purposes  may  be  admitted,  but  that  fact 
has  little  weight  in  determining  who  should  be  its  owner.  We  can- 
not say  that  the  owner  of  the  soil  is  not  as  interested  in,  and  would 
not  as  readily  contribute  to,  the  great  cause  of  scientific  advance- 
ment as  the  finder,  by  chance  or  otherwise,  of  these  silent  messen- 
gers. This  aerolite  is  of  the  value  of  $101,  and  this  fact,  if  no  other, 
would  remove  it  from  uses  where  other  and  much  less  valuable 
materials  would  answer  an  equally  good  purpose,  and  place  it  in  the 
sphere  of  its  greater  usefulness. 

The  rule  is  cited,  with  cases  for  its  support,  that  the  finder  of  lost 
articles,  even  where  they  are  found  on  the  property,  in  the  building, 
or  with  the  personal  effects  <>f  third  persons,  is  the  owner  thereof 
against  all  the  world  except  the  true  owner.  The  corectness  of  the 
ride  may  be  conceded,  but  its  application  to  the  case  at  bar  is  very 


I.  2.]  LEGAL   CHARACTER   OF   DETACHED   SOIL.  II3 

doubtful.  The  subject  of  this  controversy  was  never  lost  or  aban- 
doned. Whence  it  came  is  not  known,  but,  under  the  natural  law 
of  its  government,  it  became  a  part  of  this  earth,  and,  we  think, 
should  be  treated  as  such.  It  is  said  by  the  appellant  that  this  case  is 
unique,  that  no  exact  precedent  can  be  found,  and  that  the  conclu- 
sion must  be  based  largely  upon  new  considerations.  No  similar 
question  has,  to  our  knowledge,  been  determined  in  a  court  of  last 
resort.  In  15  American  and  English  Encyclopaedia  of  Law,  page 
388,  is  the  following  language:  "  An  aerohte  is  the  property  of  the 
owner  of  the  fee  upon  which  it  falls.  Hence  a  pedestrian  on  the 
highway,  who  is  first  to  discover  such  a  stone,  is  not  the  owner  of 
it;  the  highway  being  a  mere  easement  for  travel."  It  cites  the 
case  of  Mans  v.  Amana  Soc,  16  Alb.  Law  J.  76,  and  13  Ir.  Law  T. 
381,  each  of  which  periodicals  contains  an  editorial  notice  of  such  a 
case  having  been  decided  in  Illinois,  but  no  reported  case  is  to  be 
found.  Anderson's  Law  Dictionary  states  the  same  rule  of  law, 
with  the  same  references,  under  the  subject  of  "Accretions."  In 
20  Alb.  Law  J.  299,  is  a  letter  to  the  editor  from  a  correspondent, 
calling  attention  to  a  case  determined  in  France,  where  an  aerolite 
found  by  a  peasant  was  held  not  to  be  the  property  of  the  "  pro- 
prietor of  the  field,"  but  that  of  the  finder.  These  references  are 
entitled,  of  course,  to  slight,  if  any,  consideration,  the  information 
as  to  them  being  too  meagre  to  indicate  the  trend  of  legal  thought. 
Our  conclusions  are  announced  with  some  doubts  as  to  their  cor- 
rectness, but  they  arise  not  so  much  from  the  application  of  known 
rules  of  law  to  proper  facts  as  from  the  absence  of  defined  rules  for 
these  particular  cases.  The  interest  manifested  has  induced  us  to 
give  the  case  careful  thought.  Our  conclusions  seem  to  us  nearest 
analogous  to  the  generally  accepted  rules  of  law  bearing  on  kindred 
questions,  and  to  subserve  the  ends  of  substantial  justice.  The 
question  we  have  discussed  is  controlling  in  the  case,  and  we  need 
not  consider  others. 

The  judgment  of  the  District  Court  is  affirmed. 


2.  Soil  or  Rock   Detached. 
McGONIGLE  v.  ATCHISON. 

33  Kansas,  726.  —  1885. 

[Reported  herein  at  p.  65.] 

LAW  OF  PROP.   IN"  LAND  —  S 


114      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

NOBLE  v.  SYLVESTER. 

42  Vermont,  146.  —  1869. 

Trover  for  a  stone.  Defendant  appeals  from  judgment  for 
plaintiff.     The  facts  are  sufficiently  set  forth  in  the  opinion. 

Pierpoint,  C.  J.  —  It  appears  from  the  case  that  the  stone  in  con- 
troversy was  split  out  and  removed  from  its  original  connection  and 
position  in  the  ledge,  and  laid  up  preparatory  to  its  removal  from 
the  farm  on  which  it  was  originally  situated.  This  was  done  by  the 
plaintiff,  who  was  then  the  owner  of  the  farm,  and  the  object  of 
splitting  it  out  and  putting  it  in  such  position  was  to  remove  it  from 
the  farm  and  use  it  in  the  construction  of  a  tomb.  This  being  the 
case,  the  stone  may  be  regarded  as  being  governed  by  the  same 
principles  that  are  applicable  to  timber,  fence  rails,  and  the  like,  that 
have  been  removed  from  the  freehold  in  fact,  but  remain  upon  the 
premises  for  the  purpose  of  being  used  there  in  the  construction  of 
fences,  etc.,  and  if  on  the  land  at  the  time  the  premises  are  conveyed 
they  will  pass  by  the  deed,  but  if  they  are  there  not  for  the  purpose 
of  being  used  upon  the  premises,  but  to  be  removed  elsewhere,  then 
they  do  not  pass  by  the  deed.  So  of  this  stone,  it  having  been 
severed  from  the  freehold  for  the  purpose  of  removing  it  from  the 
premises  to  be  used  for  a  specific  purpose  elsewhere,  we  think  it 
would  not  necessarily  pass  by  the  deed;  but  as  there  was  nothing 
about  the  stone,  or  the  position  in  which  it  was  placed,  to  indicate 
the  use  to  which  it  was  to  be  put,  whether  for  fencing  or  underpin- 
ning, or  the  like,  upon  the  premises,  or  for  use  elsewhere,  it  was  a 
proper  subject  of  explanation  between  the  plaintiff  and  Wallace,  at 
the  time  the  deed  was  executed,  and  such  explanation  might  well  be 
by  parol;  it  was  not  an  exception  of  that  which  would  otherwise 
pass  by  the  deed,  but  the  giving  to  Wallace  a  knowledge  of  facts 
showing  that  it  would  not  pass,  and  thus  avoiding  all  misunder- 
standing or  controversy  about  it  in  the  future.  The  fact  that  such 
information  was  accompanied  by  an  exception  in  form,  does  not 
vary  the  principle.  We  think  there  was  no  error  in  admitting  the 
parol  testimony.  And  in  submitting  the  question  to  the  jury  whether 
there  was  a  parol  exception  or  not,  if  there  was  error,  it  is  not  an 
error  of  which  the  defendant  has  any  right  to  complain,  as  it  was 
putting  the  case,  in  this  respect,  in  quite  as  favorable  a  light  as  he 
could  legally  claim. 

We  think  it  was  not  error  in  the  court  to  allow  the  plaintiff  to 
show  his  own  sayings  in  respect  to  his  ownership  of  the  stone  made 
after  the  deed  to  Wallace,  not  for  the  purpose  of  proving  what  took 


I.  2.]  LEGAL   CHARACTER   OF   DETACHED    SOIL.  I  1 5 

place  between  him  and  Wallace  at  the  time  the  deed  was  made,  but 
for  the  purpose  of  showing  that  he  had  not  abandoned  the  property, 
inasmuch  as  the  defendant  in  his  pleadings  and  proof  sets  up  the 
fact  that  the  plaintiff  had  permitted  the  stone  to  remain  where  it 
was  when  the  deed  was  executed  up  to  the  time  the  defendant  took 
it  away,  as  one  ground  of  defense,  and  we  are  to  assume  that  the 
court,  in  admitting  the  testimony  for  that  special  purpose,  took 
care  that  the  jury  should  understand  that  they  were  not  to  use,  or 
regard,  it  for  any  other. 

But  it  is  insisted  that  even  if  the  plaintiff  did  retain  the  property 
in  this  stone,  so  that  the  title  did  not  pass  to. Wallace,  still  he  has 
lost  his  right  to  it  by  suffering  it  to  remain  on  the  premises  of  Wallace 
down  to  the  time  it  was  sold  to  the  defendant    and  he  took  it  away. 

The  jury  have  found  that  the  stone  was  excepted  in  the  sale  and 
remained  the  property  of  the  plaintiff;  that  it  was  left  upon  the 
premises  with  the  knowledge  and  assent  of  Wallace,  and  remained 
there  over  thirty  years  before  the  defendant  purchased  it  of  Wallace. 
The  case  shows  that  Wallace  never  interfered  with  the  stone  in 
any  manner,  never  made  any  claim  to  it,  never  objected  to  its 
remaining  there,  or  ever  requested  the  plaintiff  to  remove  it, 
but  suffered  it  to  remain  there  just  as  it  was  left  when  the  deed  was 
executed.  The  defendant  now  claims  that  the  title  to  this  stone 
became  vested  in  Wallace  by  lapse  of  time,  and  we  are  called  upon 
by  his  counsel  to  say,  if  thirty  years  under  such  circumstances  is  not 
sufficient  to  change  the  title,  what  time  is  sufficient?  We  do  not  feel 
called  upon  to  give  a  definite  answer  to  that  question;  but  we  feel 
safe  in  saying  when  the  property  of  one  man  is  left  upon  the 
premises  of  another,  with  the  knowledge  and  assent  of  the  owner  of 
such  premises,  that  so  long  as  such  owner  suffers  such  property  to 
remain  upon  his  premises,  without  objection  or  request  to  remove 
it,  exercising  no  act  of  ownership  over  it  and  making  no  claim  to  it, 
just  so  long  the  title  to  the  property  remains  the  same,  and  is  not 
divested  from  the  one  and  vested  in  the  other  by  mere  lapse  of 
time. 

Wallace  never  was  the  owner  of  this  stone,  and  if  the  plaintiff  had 
abandoned  it,  it  would  not  necessarily  revert  to  Wallace;  but  the 
case  does  not  show  an  abandonment,  and  it  does  not  appear  to  have 
been  put  upon  that  ground  at  the  trial  below. 

The  lapse  of  time  was  an  element  proper  to  be  considered  by  the 
jury  in  determining  the  question  submitted  to  them,  and  it  is  claimed 
that  the  County  Court  erred  in  not  giving  the  jury  special  instruc- 
tions in  respect  to  it.  It  does  not  appear  that  there  was  any  con- 
troversy upon  the  trial   as  to  the  propriety  of  their  considering  it, 


Il6      CONSTITUENTS   AND    INCIDENTS    OF    LAND.      [PT.  II.  CH.  II. 

and  there  was  no  request,  from  either  side,  that  the  court  should 
give  any  specific  charge  upon  it.  The  evidence  upon  this  point,  as 
upon  all  others,  was  submitted  to  the  jury;  it  was  doubtless  com- 
mented upon  by  the  counsel  on  both  sides  in  their  arguments,  and 
we  have  no  reason  to  suppose  it  was  not  duly  considered  and  weighed 
by  the  jury.  Under  the  circumstances  it  was  no  more  error  to  omit 
to  refer  to  this  particular  piece  of  testimony,  than  it  was  not  to 
refer  to  any  or  every  piece  of  testimony,  put  in  on  either  side,  and 
it  has  never  been  regarded  the  legal  duty  of  the  court  to  refer 
specifically  to  each  and  every  piece  of  testimony  in  the  case,  in  the 
charge,  especially  when  there  is  no  such  request.  We  find  no  error 
in  the  trial  below. 

The  judgment  of  the  County  Court  is  affirmed. 


II.  Water  as  "land." 

i.   Nature  of  Property  in  Surface  or  Standing  Waters. 
CURTISS  v.  AYRAULT. 

47  New  York,  73. —  1871 
[Reported  herein  at  p.  126.]' 


2.  Nature  of  Property  in   Running   Waters. 
GARWOOD  v.  N.  Y.  CENT.  AND  HUD.  R.  R.  R.  CO. 

83  New  York,  400.  —  1881. 

Danforth,  J.  —  The  argument  in  behalf  of  the  appellant  raises  no 
doubt  as  to  the  correctness  of  the  judgment  rendered  by  the  Supreme 
Court,  or  its  conformity  to  well-settled  rules  of  law  and  equity. 
The  diversion  of  the  water  is  conceded;  the  jury  have  found  that  it 
was  injurious  to  the  plaintiff;  he  was,  therefore,  entitled  to  damages 
already  sustained.  It  was  continuous  and  under  a  claim  of  right; 
and  to  prevent  further  injury  preventive  relief  was  proper,  for  without 
it  there  would  be  vexatious  litigation  and  multiplicity  of  suits.  Story's 
Eq  Jur.  vol.  2,  sec.  927;  Gardner  v.  Newburgh,  2  Johns.  Ch.  162; 
Swindon  Water  -Works  Co.  v.  W.  &  B.  Canal  Co.,  7  Eng.  &  Irish 
Appeal  Cas.  (L.  K.),  697;  Campbell  v.  Seaman,  63  N.  Y.  568.  The 
plaintifl    has  obtained   nothing   more;  nor  has  the  court   in  its  deci- 

1  Sec  |i|).  [26  and  [30  in  particular. — En. 


II.   2.]  PROPERTY    IN    RUNNING   WATERS.  117 

sion  gone  beyond  the  issues  in  the  action.  In  measuring  the  rights 
and  obligations  of  the  defendant,  it  was  treated  as  a  riparian  pro- 
prietor, for  the  purpose  of  enjoying  the  powers  especially  granted  to 
it,  and  such  as  might  be  necessary  to  carry  those  powers  into  effect. 
This  was  proper  in  view  of  the  concession  by  the  plaintiff  that  the 
defendant  was  the  owner  of  the  land  upon  which  the  water  was 
drawn.  How  it  became  such  owner,  whether  by  purchase  or  by 
proceedings  under  the  statute  (Laws  of  1850,  ch.  140,  sec.  14)  does 
not  appear.  The  court,  therefore,  was  not  called  upon  to  determine 
what  the  defendant's  position  would  have  been  if  the  lands  had 
been  acquired  under  the  statute,  supra,  and  properly  regarded  the 
question  as  one  to  be  determined  by  the  law  regulating  the  rights  of 
upper  and  lower  riparian  owners.  That  law  is  well  settled,  and  in 
defining  it  the  authorities  cited  by  the  parties  to  this  appeal  agree. 
Each  has  a  right  to  the  ordinary  use  of  water  flowing  past  his  land, 
that  is,  ad  lavandum  et  ad  potandum,  for  domestic  purposes  and  his 
cattle,  although  some  portion  may  be  thereby  exhausted;  and  this 
is  so,  without  regard  to  the  effect  which  such  use  may  have  upon  the 
lower  owner.  The  water  may  also  be  used  for  irrigation  or  for 
manufacturing  purposes.  The  cases  cited  by  the  appellant  are 
abundant  to  show  this;  but  in  every  one  the  irrigation  is  of  the  land 
to  which  the  right  to  use  the  water  is  an  incident,  or  with  which  the 
manufacturing  purpose  is  connected,  but  even  this  privilege  cannot 
be  exercised  if  thereby  the  lawful  use  of  the  water  by  a  lower  pro- 
prietor is  interfered  with  to  his  injury.  Miner  v.  Gilmour,  12  Moore's 
P.  C.  156;  Tyler  v.  Wilkinson,  4  Mason,  397.  Now,  in  the  case 
before  us,  the  defendant  has  done  something  more;  it  has  not  been 
content  with  exercising  this  privilege;  it  has  diverted  a  considerable 
portion  of  the  stream  not  for  any  use  upon  the  land  past  which  it 
flows,  but  for  the  transaction  of  its  business  in  other  places  and  for 
purposes  in  no  respect  pertaining  to  the  land  itself.  The  pipes  and 
reservoirs  of  the  defendant  are  not  laid  or  constructed  for  the  mere 
purpose  of  detaining  the  water  a  short  time,  or  applying  it  to 
machinery  or  other  object  upon  the  land  itself,  and  afterward  restor- 
ing it,  but  for  facility  in  filling  the  defendant's  locomotives,  in  order 
that  they,  with  power  generated  from  it,  may  pass  as  the  interest  of 
the  defendant  may  require,  to  the  east  or  west,  returning  no  portion 
of  it,  even  in  the  form  of  vapor,  to  the  stream  from  which  it  was 
taken.  So  far  as  the  plaintiff  is  concerned,  it  has  carried  away  from 
his  premises  the  water,  as  effectually  as  if  it  had  been  turned  into 
another  channel  and  discharged  at  Albany  or  Buffalo;  and  from 
this,  as  the  jury  has  found,  he  has  sustained  damage.  Not  only 
this,  but  it  has  been  done  under  a  claim  of  right  by  the  defendant, 


Il8      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CM.  II. 

which,  if  acquiesced  in  by  the  plaintiff,  would  in  course  of  time  ripen 
into  a  realty  and  destroy  the  incident  of  his  property  —  the  right  of 
the  plaintiff  as  riparian  owner  to  have  the  water  flow  as  it  had  there- 
tofore been  accustomed  to  flow.  For  in  that  case,  although  the 
defendant  could  not  claim  the  right  as  riparian  proprietor,  it  might 
claim  it  by  prescription;  and  to  prevent  this  result  also,  the  plaintiff 
had  a  clear  right  to  an  injunction.  The  terms  of  the  one  granted 
are  sufficiently  well  guarded.  The  defendant  is  "  restrained  "  only 
"  from  diverting  the  water,  to  the  injury  of  the  plaintiff."  But  the 
learned  counsel  for  the  appellant  contends  that  inasmuch  as  both 
plaintiff  and  defendant  require  the  water  for  artificial  as  distinguished 
from  natural  uses  —  the  one  as  a  power  for  mill  purposes,  the  other 
as  material  or  the  means  of  producing  power  for  railroad  purposes  — 
it  may  be  abstracted  by  the  defendant,  even  to  the  other's  injury, 
although  he  concedes  the  rule  would  be  different  if  the  plaintiff 
required  the  water  for  natural  purposes.  It  is  difficult  to  see  how 
such  a  distinction  can  be  maintained.  The  plaintiff  requires  the 
current  because  its  momentum  supplies  power.  The  defendant,  as 
riparian  owner,  has  no  right  to  remove  the  water  and  so  diminish  it. 
If  the  defendant's  use  was  for  natural  purposes,  there  might  be  some 
reason  for  giving  it  priority;  but  this  is  not  pretended.  To  justify 
a  use  beyond  that,  a  grant  or  license  would  be  necessary.  The 
defendant  exhibits  neither,  but  in  its  answer  asserts  that  its  use  has 
been  adverse  to  the  plaintiff  for  more  than  twenty  years.  The  evi- 
dence does  not  sustain  the  claim.  As  to  it,  therefore,  the  case 
presents  no  exception  to  the  rule,  that  a  riparian  proprietor  has  no 
right  to  divert  any  part  of  the  water  of  the  stream  into  a  course 
different  from  that  in  which  it  has  been  accustomed  to  flow,  for  any 
purpose,  to  the  prejudice  of  any  other  riparian  owner.  This  is  the 
doctrine  both  of  the  common  and  civil  law,  3  Kent's  Com.  585,  and 
it  stands  upon  the  familiar  maxim,  sic  utere  tuo  ut  non  laedas  alieno. 
In  substance  the  defendant's  claim  is,  that  it  has  a  right  to  use  all 
the  water  it  pleases;  but  it  does  not  show  the  origin  or  foundation 
of  the  right.  As  the  case  stands,  then,  the  defendant  has  diverted 
the  water  without  right  and  to  the  plaintiff's  injury;  its  use,  there- 
fore, could  not  be  reasonable,  and  the  inquiry  desired  by  the  defend- 
ant, as  to  whether  it  was  or  not,  would  not  be  applicable.  To  this 
effect  also  are  the  cases  cited  in  behalf  of  the  appellant.  One  much 
insisted  upon  is  Elliott  v.  Fitchburg  R.  R.  Co.,  10  Cush.  191.  There, 
also,  the  defendants  used  the  water  of  the  stream  "  for  furnishing 
their  locomotive  steam  engines  with  water."  The  plaintiff  sought 
to  recover  nominal  damage,  without  proof  of  actual  damage;  but 
the  court  held  against  him,  and  the  conclusion  was  that  one  riparian 


II.  2.]  PROPERTY    IN    RUNNING   WATERS.  II9 

proprietor  cannot  maintain  an  action  against  an  upper  proprietor  for 
a  diversion  of  part  of  the  water  of  a  natural  water-course  flowing 
through  their  lands,  unless  such  diversion  causes  the  plaintiff  actual, 
perceptible  damage.  It  should  be  noticed  that  this  was  an  action 
at  law.  The  Earl  of  Sandivich  v  The  Great  Northern  R.  R.  Co.,  L. 
R.  10  Ch.  Div.  707,  was  a  case  in  equity  and  upon  facts,  with  one 
exception  hereafter  noted,  not  unlike  those  now  before  us.  The 
plaintiff  asked  both  damages  and  an  injunction.  It  was  held  that 
the  purpose  for  which  the  water  was  taken  was  a  lawful  purpose; 
that  it  was  a  reasonable  enjoyment  of  the  property  of  the  defendant; 
that  the  quantity  taken  was  not  excessive,  and  when  the  quantity 
returned  to  the  stream  was  taken  into  consideration,  the  diversion 
was  very  slight.  The  court  says:  "Is  that  a  case  in  which,  if 
there  is  nothing  else  in  it,  the  plaintiff  could  ask  in  this  court  for  an 
injunction?  What  injunction  is  he  entitled  to?  Is  there  any  damage 
donetohim?"  And  again  says:  "  Nothing  that  the  defendants  have 
done  has  exceeded  the  limits  of  their  lawful  right  to  deal  with  the 
water,  and  there  is  no  particle  of  evidence  to  show  that  the  plaintiffs 
have  suffered  injury,  or  that  the  right  which  they  enjoyed  and  are 
entitled  to  enjoy  has  been  in  any  degree  invaded  or  interfered  with  by 
anything  that  has  been  done  by  the  defendants;  "  and  the  bill  was 
denied.  Now,  the  exception  which  distinguishes  the  cases  cited 
from  the  one  in  hand  is  this:  Here  the  jury  have  found,  on  suffi- 
cient evidence,  that  the  defendant  has  so  diverted  the  water  of  the 
creek  above  the  plaintiff  as  to  "  perceptibly  reduce  the  volume  of 
water  flowing  therein,"  and  "  materially  reduce  or  diminish  the 
grinding  power  of  the  plaintiff's  mill,"  and  in  consequence  thereof, 
that  he  has  sustained  damage  to  a  substantial  amount.  In  the  cases 
cited  similar  facts  are  wanting.  They  lie  at  the  foundation  of  the 
one  before  us  and  are  sufficient  to  call  for  the  interposition  of  a 
court,  whether  of  law  or  equity. 

The  effect  and  proper  construction  of  the  act  of  1869  (Laws  of 
1869,  chap.  237),  or  its  amendment  (Laws  of  1877,  chap.  224),  con- 
ferring upon  railroad  corporations  certain  powers  to  take  water,  are 
not  before  us,  for  the  plaintiff  is  not  shown  to  have  acquired  any 
right  thereunder.  As  the  case  now  stands,  no  reason  is  shown  why 
the  judgment  appealed  from  should  not  be  affirmed,  and  that,  I 
think,  must  be  the  result  of  this  appeal. 

Judgment  appealed  from  affirmed,  with  costs. 


120      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

Shepley,  J.,  in  HEATH  v.  WILLIAMS. 

25  Maine,  209.  —  1845. 

The  report  [of  the  referee]  further  states  "  that  defendant  has  a 
clothing  mill  on  the  stream  above  plaintiff's  dam.  It  is  fed  by  a  dam 
which,  with  its  predecessor  on  the  same  site,  has  stood  for  more  than 
twenty  years  prior  to  the  alleged  trespass.  That  the  plaintiff's 
dam  and  mill  were  built  between  the  years  1829  and  1833.  That  the 
defendant  next  contended  "  that  as  his  mill  and  dam  were  the  oldest, 
he  had  a  right  of  priority  to  the  water  and  might  lawfully  break  the 
flume,  as  he  did."  Referee  was  of  this  opinion,  unless  the  legal 
principle  was  controlled  or  rendered  inapplicable  by  other  considera- 
tions belonging  to  the  case. 

The  cases  cited  in  the  arguments  of  counsel  decide,  that  priority 
of  appropriation  of  the  water  of  a  stream  comers  no  exclusive  right 
to  the  use  of  it.  A  riparian  proprietor  who  owns  both  banks  of  a 
stream  has  a  right  to  have  the  water  flow  in  its  natural  current  with- 
out any  obstruction  injurious  to  him,  over  the  whole  extent  of  his 
land,  unless  his  rights  have  been  impaired  by  grant,  license,  or  an 
adverse  appropriation  for  more  than  twenty  years.  The  defendant 
appears  to  be  the  undisputed  owner  of  the  land  on  both  banks  of 
the  stream  below  his  mill  nearly  or  quite  to  the  plaintiff's  dam, 
unless  that  title  shall  prove  to  be  defective  in  the  manner  hereafter 
stated.  While  it  is  contended  that  the  plaintiff's  "  dam  and  mill  were 
erected  with  suuh  knowledge  and  concurrence  of  the  defendant's 
grantors  as  amounted  to  a  license,"  it  is  not  contended  that  he  has 
acquired  any  right  by  grant  or  by  an  appropriation  for  more  than 
twenty  years  to  cause  the  water  to  be  flowed  back  upon  the  defend- 
ant's mill.  It  is  not  necessary  to  decide  whether  the  defendant  had 
acquired  a  right  to  have  the  water  of  the  stream  so  used  as  to  pre- 
vent its  being  thereby  flowed  back  upon  his  mill  by  an  appropriation 
of  it  without  such  an  occurrence  for  more  than  twenty  years,  as 
decided  in  the  case  of  Saunders  v.  Newman,  1  B.  &  Aid.  258. 
Although  he  could  not  derive  any  right  from  the  statute,  c.  126, 
sec.  2,  or  from  priority  of  appropriation,  yet  the  common  law  would 
afford  him  sufficient  protection  against  the  flow  of  water  back  upon 
his  own  land  to  the  injury  of  his  mill  by  the  acts  of  another.  Failing 
to  obtain  relief  from  the  continuance  of  such  an  injury  without  it, 
In-  might  lawfully  <  titer  upon  the  land  of  the  plaintiff  and  remove,  so 
fir  a  ary,  the  obstruction  which  occasioned  it.1 

1  This  doctrine  ■>■  to  priority  oi  appropriation  is  modified  in  some  of  the  States 
by  ili--  "  Mill  acl  tiled.     Sec  note  to  Heath  v.   Williams  in  43  Am.  Dec. 

265  at  p.  276.     I 'i    omi    "i   iIh-   western  States  and  territories  it  is  modified  also 
t<,  meel  the  ne<  oi  irrigation  and  of  mining.     Id.  at  p.  279.  —  Ed. 


II.  2.]  PROPERTY    IN    RUNNING   WATERS.  121 

CORNING  v.  TROY  IRON  AND  NAIL  FACTORY. 
40  New  York,  191.  —  1869. 

This  action  was  brought  to  restrain  defendant  from  diverting  the 
waters  of  Wynant's  Kill  from  along  the  line  of  plaintiff's  land  and 
to  compel  it  to  restore  to  their  bed  a  part  of  the  waters  of  said  Kill 
already  diverted  by  it. 

At  the  place  in  question  the  Kill  makes  a  bend  to  the  north  leaving 
a  one  acre-parcel  in  the  bend  on  the  south  of  the  creek.  A  seven- 
acre  parcel  is  on  the  northerly  side  of  the  creek  and  surrounds  the 
one-acre  parcel  on  the  east,  north  and  west.  The  defendant  owns  the 
one-acre  parcel  and  for  many  years  held  the  seven-acre  parcel  under 
a  lease  which  expired  three  or  four  years  before  this  action  was  com- 
menced. While  leaseholder  of  the  seven-acre  lot  defendant  diverted 
the  stream  from  its  channel  between  the  two  lots  and  caused  it  to 
flow  across  the  one-acre  lot.  The  seven-acre  parcel  now  belongs  to 
plaintiff. 

The  last  judgment  below  was  for  plaintiff  and  the  defendant 
appeals  therefrom  to  this  court. 

Grover,  J. — *  *  *  The  defendant  entered  into  possession 
and  occupied  under  this  lease  for  the  entire  term.  These  facts 
show  that  the  defendant  was  bound  to  restore  the  land  with  the 
water  running  in  its  natural  channel,  at  the  expiration  of  the  lease, 
unless  relieved  from  such  obligation  by  some  immediate  act  of  the 
lessors,  or  of  those  holding  their  title.  While  in  possession  under 
this  lease,  in  1839,  the  defendant  constructed  an  artificial  channel 
for  the  stream,  by  which  it  was  wholly  diverted  from  the  seven 
acres,  and  conducted  across  the  excepted  acre,  and  used  upon,  a 
large  overshot  wheel,  constructed  to  operate  the  extensive  machinery 
of  the  defendant.  At  this  time  the  plaintiffs  were  the  owners  of  six 
acres  upon  the  stream,  below  the  premises  in  question,  upon  which 
was  extensive  machinery,  operated  by  them,  by  means  of  the  water 
power  of  the  creek,  but  having  no  interest  in  the  seven  acres.  The 
plaintiffs  drew  down  their  pond  at  this  time,  to  enable  the  defendant 
to  excavate  a  tail  race  from  its  wheel  to  the  bed  of  the  stream.  It 
is  insisted  by  the  defendant  that  this  precludes  the  claim  of  the 
plaintiffs  to  have  the  stream  restored  to  its  natural  channel,  thereby 
causing  a  great  loss  to  the  defendant  in  respect  to  the  operation  of 
its  machinery.  The  answer  to  this  is,  that  the  plaintiffs  base  their 
claim  to  such  restoration  upon  their  title  to  the  seven  acres,  which 
they  obtained,  in  part,  in  1852,  and  the  residue  in  1856,  and  that  it 
was  known  to  the  defendant  at  the  time  that  the  plaintiffs  then  had 


122      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

no  interest  therein.  It  was,  therefore,  not  then  in  their  power  to 
affect  any  right  appurtenant  to  the  reversion  in  the  seven  acres,  as 
against  the  then  owners  or  those  subsequently  acquiring  the  title. 
It  is  further  insisted  by  the  defendant  that  Defreest,  one  of  the 
defendant's  lessors,  was  precluded  from  requiring  the  restoration  of 
the  stream,  by  his  assent  to  its  diversion  at  the  time  it  was  made  in 
1839,  and  that  if  his  right  was  thus  cut  off,  no  grantee  from  him 
could  assert,  under  his  grant,  any  better  right  thereto  than  he  had. 
The  conclusion  is  doubtless  correct  under  the  facts  of  this  case,  as 
the  water  was  in  fact  diverted  at  the  time  Defreest  conveyed  to  the 
plaintiffs.  This  was  sufficient  to  put  the  plaintiffs  upon  inquiry  as 
to  any  right,  legal  or  equitable,  of  the  defendant  to  make  the  diver- 
sion. Such  inquiry  would  have  led  to  information  of  the  acts  of 
Defreest,  and  the  plaintiffs  are,  therefore,  chargeable  with  notice  of 
such  acts.  They  are  not,  therefore,  to  be  regarded  as  bona  fide  pur- 
chasers in  this  respect,  but  take  the  land  subject  to  any  legal  or 
equitable  right  of  diversion  the  defendant  had  as  against  Defreest. 
It  must,  therefore,  be  determined  what  such  right,  if  any,  was  as 
against  the  latter.  The  case  shows  that  Defreest  lived  at  the  time 
in  the  immediate  vicinity,  was  frequently  at  the  place  while  the  work 
was  in  progress,  conversed  several  times  with  the  managing  agent 
of  the  defendant,  expressed  to  such  agent  his  opinion  that  the  change 
would  improve  the  water  power,  and  would  benefit  his  property  in 
the  vicinity.  That  he  knew  that  the  contemplated  change  and 
improvements  would  cause  the  expenditure  of  a  large  sum  of  money, 
and  that  while  these  large  expenditures  were  being  incurred,  made  no 
objection  to  the  diversion  of  the  water.  It  is  claimed  that  he  must 
have  known,  from  the  amount  of  the  expenditure  and  the  character 
of  the  improvement,  that  the  diversion  was  designed  to  be  per- 
manent. The  latter  fact  is  strongly  controverted  by  the  plaintiff; 
but,  in  considering  this  question,  I  shall  assume  its  truth.  It  is 
insisted  by  the  defendant  that  these  facts  constitute  an  estoppel 
upon  Defreest  from  asserting  any  claim  to  a  restoration  of  the 
water  to  the  prejudice  of  the  defendant.  The  answer  to  this  position 
is,  that  the  defendant  at  the  time  had  not  only  the  possession  of  the 
seven  acres,  and  the  full  control  of  the  water  belonging  thereto, 
but,  also,  the  right  of  possession  and  control  for  the  unexpired  term 
of  the  lease,  a  period  of  thirteen  years,  and  that  during  that  time 
Defreest  had  no  right  to  object  to  any  use  of  the  stream  by  the 
d  ifendant,  except  such  as  worked  an  injury  to  the  reversion,  which 
the  diversion  of  the  stream,  dining  that  period,  clearly  would  not. 
That  the  defendant,  at  the  time,  knew  that  upon  the  expiration  of 
the  lease    its   right   to   divert   the  water  would  cease  under  it,  just  as 


II.  2.]  PROPERTY    IN    RUNNING    WATERS.  123 

well  as  Defreest  did,  and  there  was  no  pretense  of  any  other  claim 
by  the  defendant  to  any  other  right  to  divert  the  stream  from  the 
seven  acres.  The  defendant  was  not,  therefore,  in  any  sense,  misled 
or  deceived  as  to  its  right  by  anything  done  or  omitted  by  Defreest. 
The  case  does  not,  therefore,  come  within  the  principle  of  the  class 
of  cases  cited  by  defendant's  counsel,  holding  that  when  one,  in  the 
belief  that  he  has  title,  makes  improvements  with  the  knowledge 
and  encouragement  of  the  owner,  such  owner  shall  be  estopped  from 
asserting  his  title  to  the  prejudice  of  the  party  having  made  such 
improvements.  The  estoppel  is  based  upon  the  fraudulent  conduct 
of  the  owner.  There  is  no  such  reason  applicable  to  Defreest.  He 
was  not  estopped,  and  it  follows  that  the  plaintiffs,  as  his  grantees, 
are  not.  There  is  no  pretense  of  an  estoppel  upon  the  co-tenants 
of  Defreest,  who  are  also  grantees  of  the  plaintiffs.  It  is  insisted 
by  the  defendant  that  the  plaintiffs  acquired  no  right  to  a  restora- 
tion of  the  stream,  under  their  deed,  although  such  right  existed  in 
their  grantors,  for  the  reason  that  the  diversion  was  prior  to  the 
grant,  and  that  the  defendant  was  holding  the  stream  adversely  at 
the  time.  The  land  was  at  the  time  in  the  possession  of  the 
grantors.  There  is  no  question  but  the  title  to  that  passed  by  the 
grant  to  the  plaintiffs,  with  everything  incident  or  pertaining  thereto. 
The  right  to  the  flow  of  the  stream  in  its  natural  channel  was  an  inci- 
dent to  the  land.  3  Kent's  Com.  439,  1st  R.  S.  sec.  147,  p.  739, 
declares  that  grants  of  land  shall  be  void  when  such  lands  shall,  at 
the  time,  be  in  the  actual  possession  of  another,  claiming  under  a 
title  adverse  to  that  of  the  grantor.  This  applies  to  an  adverse 
holding  of  land,  and  not  to  such  holding  of  some  right  appurtenant 
thereto,  which  passes  with  the  land.  The  purchaser  of  the  land  is 
entitled  to  such  appurtenant  rights.  Mason  v.  Hill,  4  Barn.  & 
Adolphus.  It  follows  that  the  plaintiffs  had  the  right  to  have  the  j 
stream  flow  in  its  natural  channel  along  the  seven  acres  purchased  ' 
by  them.  For  a  violation  of  this  right  by  the  defendant  they  had 
a  right  of  recovery,  without  proof  of  actual  damage,  irrespective  of 
any  use  of  the  water  power  by  them.  Tyler  v.  Wilkison,  4  Mason, 
400;  3  Kent,  539;  Adams  v.  Bunny,  25  Vermont,  225;  Embury  v. 
Oiceny  6  Exch.  368;  Townsend  v .  McDonald,  2  Kernan,  381.  It  fol- 
lows that  the  plaintiffs  were  entitled  to  recover  damages  of  the 
defendant  for  the  wrongful  diversion  of  the  stream.  It  may  now  be 
assumed  as  settled  that  the  plaintiffs  could,  in  the  same  action, 
obtain  all  the  relief  to  which  the  facts  entitled  them,  arising  out  of 
the  diversion  of  the  water,  whether  such  relief  was  legal  or  equitable, 
or  both.  Code,  sec.  167.  They  were  clearly  entitled  to  recover 
damages,  and  the  judge,   therefore,   erred  in  dismissing  the  com- 


& 


124      CONSTITUENTS   AND    INCIDENTS    OF    LAND.       [PT.  II.  CH.  II. 

plaint,  and  the  General  Term  were  right  in  reversing  the  judgment 
and  ordering  a  new  trial.  This  leads  to  an  affirmance  of  the  order 
appealed  from,  and  to  final  judgment  against  the  defendant;  but 
whether  such  judgment  shall  be  for  damages  only,  or  in  addition 
thereto  shall  award  a  mandatory  injunction  for  the  restoration  of 
the  water  to  its  natural  channel,  remains  to  be  considered.  It  is 
urged  by  the  defendant  that  the  latter  ought  not  to  be  included  foj> 
various  reasons,  the  principal  of  which  are,  that  it  would  be  pro- 
ductive of  great  injury  to  the  defendant,  and  be  of  little  benefit  to 
the  plaintiffs.  The  former  fact  is  established  by  the  evidence. 
The  latter  rests  upon  the  hypothesis  that,  inasmuch  as  the  plaintiffs 
have  not  heretofore  used  the  power  and  have  made  no  preparations 
to  use  it,  they  do  not  desire  it  for  use.  The  facts  show  that  its 
restoration  would  give  a  power  sufficient  for  a  grist-mill  grinding 
fifteen  bushels  per  hour,  or  a  cotton  factory  with  forty  looms.  The 
question  then  comes  to  this,  whether  the  defendant,  who  has  wrong- 
fully diverted  from  the  plaintiffs  a  stream  affording  such  a  water 
power,  shall  be  permitted  to  continue  such  wrongful  diversion,  and 
thus  to  deprive  the  plaintiffs  of  what  is  clearly  theirs  without  their 
assent,  upon  the  ground  simply  that  its  restoration  would  be  a  great 
damage  to  it.  In  other  words,  that  by  its  continuance  wrongfully 
to  appropriate  to  its  own  use  the  property  of  the  plaintiffs,  it  derives 
a  much  greater  benefit  than  the  plaintiffs  could  by  being  restored  to 
their  own.  The  bare  statement  of  the  question  would  seem  to  sug- 
gest the  only  proper  answer.  The  very  idea  of  justice  is  to  give  to 
each  one  his  due.  The  use  of  the  natural  flow  of  the  stream  is  the 
due  of  the  plaintiffs,  and  to  justify  withholding  it  from  them  requires 
some  better  reason  than  loss  to  the  wrongdoer  consequent  upon  its 
restoration.  It  is  insisted  that  the  equitable  right  of  restoration  has 
been  lost  by  delay.  The  statute  of  limitation,  either  at  law  or  in 
equity,  has  not  attached  so  as  to  bar  the  right.  The  case  has,  there- 
fore, no  analogy  to  that  class  of  cases  where  equity  has  refused 
relief  upon  the  ground  that  the  legal  remedy  was  barred  by  the 
statute.  The  defendant  has  expended  no  money  upon  improve- 
ments since  the  expiration  of  the  lease,  consequently  the  principle 
of  the  cases  holding  that  where,  during  the  delay  of  a  party  in 
asserting  his  right,  expenditures  have  been  made  in  improvements, 
equity  will  not  interfere,  do  not  apply.  Lewis  v.  Chapman,  3  Beavan, 
is  one  of  this  1  lass.  The  plaintiff  sought  to  restrain,  by  injunction, 
tin  publication  of  a  work  of  which  he  was  the  owner  of  a  copyright. 
It  appeared  that  lie  had  lain  still  for  six  years  and  upwards  and  seen 
the  defendant  expending  his  money  in  printing  the  work,  etc.,  etc.; 
upon  this  ground,  equity  refused  to  relieve  the  plaintiff.     There  are 


II.   2.]  PROPERTY    IN    RUNNING   WATERS.  125 

numerous  cases  of  this  description  found  in  the  books,  but  they  all 
rest  upon  the  same  principle.  All  there  is  of  the  delay  in  this  case 
is,  that  the  plaintiffs  finding  the  defendant  using  their  water  power 
have  permitted  it  to  continue  such  use  for  about  four  years 
Clearly  this  indulgence  furnishes  no  reason  for  the  refusal  of  equity 
to  aid  the  plaintiffs  in  the  recovery  of  their  legal  rights.  It  is 
insisted  by  the  defendant  that  equity  ought  not  to  interpose  in 
behalf  of  the  plaintiffs,  for  the  reason  that  they  do  not  want  the 
water  power  afforded  by  the  stream  for  use.  This  is  a  mere 
assumption.  It  is  true,  they  have  not  heretofore  used  the  power, 
perhaps,  for  the  very  good  reason  that  they  have  not  had  the  ability 
to  use  it  on  account  of  the  defendants  witholding  it  from  them.  It 
is  said  that  the  plaintiffs  have  erected  no  machinery  for  that  purpose. 
This  is  true.  The  plaintiffs  have  not  constructed  machinery  to  rot 
while  litigating  with  the  defendant  for  the  recovery  of  the  stream. 
But  if  the  facts  claimed  were  clearly  established,  it  would  not  protect 
the  defendant  in  wrongfully  withholding  the  stream.  No  man  is 
justified  in  withholding  property  from  the  owner  when  required  to 
surrender  it,  on  the  ground  that  he  does  not  need  its  use.  The 
plaintiffs,  may  do  what  they  will  with  their  own.  Upon  established 
principles  this  is  a  proper  case  of  equity  jurisdiction.  First,  upon 
the  ground  that  the  remedy  at  law  is  inadequate.  The  plaintiffs 
are  entitled  to  the  flow  of  the  stream,  in  its  natural  channel.  Legal 
remedies  cannot  restore  it  to  them  and  secure  them  in  the  enjoyment 
of  it.  Hence  the  duty  of  a  court  of  equity  to  interpose  for  the 
accomplishment  of  that  result.  A  further  ground  requiring  the 
interposition  of  equity  is  to  avoid  multiplicity  of  actions.  If  equity 
refuses  its  aid  the  only  remedy  of  the  plaintiffs,  whose  rights  have 
been  established,  will  be  to  commmence  suits  from  day  to  day,  and 
thus  endeavor  to  make  it  for  the  interest  of  the  defendant  to  do 
justice  by  restoring  the  stream  to  its  channel.  If  the  plaintiffs  have 
no  other  means  of  recovering  their  rights,  there  is  a  great  defect  in 
jurisprudence.  But  there  is  no  such  defect.  The  right  of  the 
plaintiffs  to  the  equitable  relief  sought  is  established  by  authority 
as  well  as  principle.  Webb  v.  The  Portland  Manufacturing  Co.,  3 
Sumner,  190  and  cases  cited;  Tyler  v.  Wilkison,  4  Mason,  400; 
Townsend  v.  McDonald,  2  Kernan,  381;  2  Story's  Equity,  sees.  901, 
926-7;  Angell  on  Water  Courses,  sees.  449-50.  It  is  further  insisted 
by  the  defendant  that  equity  will  not  interpose  until  the  right  has 
been  settled  at  law.  That,  formerly,  was  the  universal  rule,  where 
there  was  any  substantial  doubt  as  to  the  legal  right.  Gardner  v. 
The  Trustees  of  Newburgh,  2  Johns.  Chan.  162.  But  that  rule  no 
longer   prevails   in   this   State.     We   have   before  seen   that  all  the 


126      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CII.  II. 

relief  to  which  a  party  is  entitled,  arising  from  the  same  transaction, 
may,  under  the  Code,  be  obtained  in  one  suit.  Beside,  there  is  no 
doubt  as  to  the  legal  right  in  the  present  case.  My  conclusion  is, 
that  the  plaintiffs  are  entitled  to  the  aid  of  equity  in  restoring  the 
stream  to  its  natural  channel,  and  this  whether  the  loss  to  the 
defendant  is  more  or  less.  The  defendant  was  bound  to  restore  the 
stream  upon  the  expiration  of  the  lease,  equally  with  the  land. 
The  order  appealed  from  should  be  affirmed,  and  final  judgment  given 
against  the  defendant  for  the  damages  sustained  by  plaintiffs,  and 
that  they  restore  the  stream  to  its  natural  channel.     *     *     * 

Order  of  General  Term  affirmed  and  judgment  final  ordered  for 
the  plaintiffs  for  damages  to  be  assessed,  and  a  mandatory  injunction 
that  the  defendant  restore  the  water  within  twelve  months  from  the 
entry  of  judgment. 


3.  Artificial  Watercourses. 

CURTISS  v.  AYRAULT. 

47  New  York,  73.  —  1871. 

Action  to  recover  damages  for  the  diversion  of  a  part  of  the 
waters  flowing  in  a  artificial  channel  which  had  been  dug  by  a  prior 
owner  from  whom  both  plaintiff  and  defendant  deduce  their  titles. 

Judgment  for  defendant.      Plaintiff  appeals. 

Folger,  J.  — We  have  examined  with  care  the  testimony  in  this 
case,  particularly  those  portions  of  it  to  which  we  are  pointed  by 
the  brief  of  the  appellant,  and  which  he  claims  show  the  existence 
in  former  days  of  a  natural  stream.  We  are  of  the  opinion  that  the 
jury  would  not  have  been  warranted  in  finding  that  there  was  ever 
a  natural  stream  running  from  the  mouth  of  Indian  Creek  or  from 
the  marsh  into  the  cove.     *     *     * 

The  waters  which  stood  upon  the  marsh,  or  were  held  in  partial 
suspense  in  the  earth,  were  in  legal  effect  surface  waters.  They 
belonged  to  the  owner  of  the  soil  on  which  they  stood  or  through 
winch  they  soaked.  He  might  lawfully  lead  them  off  in  such  direc- 
tion and  in  such  quantity  as  he  saw  fit,  and  no  neighbor  could  com- 
plain, for  no  neighbor  had  a  right  to  receive  them  by  percolation.  The 
owner  had  only  to  see  to  it  that  he  did  not  injure  a  neighbor  by 
<lis<  harging  them  upon  him  in  unusual  quantity,  or  at  unusual  place. 
'I  he  following  authorities  sustain  this  position:  Ellis  v.  Duncan  t  Ct. 
of  App  ,  cited  in  Goodale  v.    Tattle,  29  N.  Y.  466;  Buff  urn  v.  Harris, 


II.  3-]  ARTIFICIAL    WATERCOURSES.  127 

5  Rd.  1,  243;  Rawstron  v.  Taylor,  11   Exch.  369;  Broadbent  v.  Rams- 
botham,  Id.  602;    Wheatley  v.  Branch,  1  Casey,  25  Penn.  St.  528. 

This  state  of  facts  and  this  rule  of  law  accompanying  them,  con- 
tinued until  Newbold,  after  having  made  ditches,  divided  the  tract 
into  parcels  and  conveyed  the  parcels  to  different  grantees.  And 
even  had  he,  without  having  made  the  ditches,  divided  the  tract  and 
conveyed  the  parcels  to  different  owners,  the  same  rule  would  have 
applied.  The  grantee  of  any  parcel  would  have  had  the  right  to 
have  carried  off  these,  being  surface  waters,  without  affecting  any 
right  of  any  one  to  receive  them  from  his  land.  See  cases  above 
cited. 

But  Newbold,  being  the  owner  of  the  whole  tract,  did  very  much 
affect  and  change  its  material  condition,  and  the  relations  of  different  . 
parts  of  it  to  each  other.  By  digging  ditches  and  deepening  and 
extending  them,  he  made  a  permanent  channel  by  which  these  , 
waters  flowed  in  a  continuous  stream,  from  and  through  the  parcel 
conveyed  to  the  grantor  of  the  defendant,  through  other  parcels,  on 
to  and  through  the  parcel  conveyed  to  the  plaintiff's  grantor.  There 
is  no  doubt  but  that  he  benefited  the  lands  now  owned  by  the 
defendant  by  freeing  them  from  standing  water,  and  that  the  benefit 
conferred  would  continue  so  long  as  the  ditch  was  kept  open  and  free 
below.  There  is  no  doubt  but  that  at  the  present  day  the  continu- 
ance of  the  ditch  and  the  keeping  of  it  open  and  free  above  would 
be  a  benefit  to  the  lands  of  the  plaintiff  in  the  constant  and  ample 
supply  of  good  water  which  it  would  afford.  And  if  at  the  time 
Newbold  made  sale  of  these  parcels  of  land,  these  reciprocal  benefits 
and  burdens  were  existing  and  apparent,  and  were  part  of  the 
advantages  possessed  by  these  lands,  and  part  of  the  value  attached 
to  them  in  the  estimation  of  those  dealing  with  each  other  in  regard 
to  them,  and  if  they  contracted  with  reference  to  such  a  condition 
of  the  lands,  neither  Newhold  nor  his  respective  grantees  had  right 
after  that  to  change  the  relative  condition  of  one  parcel  to  the  injury 
of  another  parcel,  in  these  respects.  This  principle  is  distinctly 
stated  and  clearly  elucidated  in  Lampman  v.  Milks,  21  N.  Y.,  505, 
and  does  not  need  particular  discussion  here;  and  see  Dunkles  v.  The 
Milton  R.  R.  Co.,  4  Foster  N.  H.  489. 

The  only  difficulty  is  whether  the  facts  of  this  case  exactly  square 
with  the  requirements  of  the  rule  in  21  N.  Y.,  laid  down  in  these 
words:  "  The  parties  are  presumed  to  contract  in  reference  to  the 
condition  of  the  property  at  the  time  of  the  sale,  and  neither  has  a 
right,  by  altering  arrangements  then  openly  existing,  to  change 
materially  the  relative  value  of  the  respective  parts."  Now  some 
stress  is  laid   upon  the  purpose  which  Newbold  had  in  making  the 


128      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

ditch,  and  it  is  claimed  that  it  was  naught  else  than  to  drain  his 
lands.  But  the  application  of  the  ride  does  not  depend  solely  upon 
the  purpose  for  which  the  changes  have  been  made  in  the  tenement 
by  the  owner.  It  is  the  open  and  visible  effect  upon  the  parts  which 
the  execution  of  the  purpose  has  wrought,  which  presented  to  the 
view  of  the  purchaser,  is  presumed  to  influence  his  mind,  and  to 
move  him  in  his  bargaining.  We  have  held  in  Simmons  v.  Cloonan1 
(decided,  December,  187 1),  that  this  presumption  may  be  repelled 
by  the  actual  knowledge  of  the  contracting  parties,  which  may  nega- 
tive any  deductions  to  be  drawn  from  the  visible  physical  condition 
of  the  property.  And  so  far,  a  knowledge  of  the  purpose  of  the 
owner  is  an  element.  But  there  was  testimony  tending  to  show 
that  though  the  first  and  always  the  chief  purpose  of  Newbold  was 
to  drain  the  lands  more  immediately  affected  by  the  marsh,  there 
was  an  auxiliary  purpose,  to  furnish  all  other  lands  a  constant  and 
full  supply  of  water.  The  question  whether  the  purchaser  from 
"  Newbold  contracted  with  him,  and  bought  these  lands  in  reference 
to  their  condition  at  the  time  of  sale,  depends  as  well  upon  what 
was  their  purpose  and  understanding,  and  what  from  the  physical 
view  of  the  land,  might  be  inferred  to  be  the  effect  upon  them  in 
their  estimate  of  their  advantages  and  value  with  this  artificial  stream 
of  water  led  through  the  different  parts  of  it.  And  the  question  for 
decision  at  the  trial  was:  Considering  all  the  facts  established 
by  the  testimony,  and  all  the  inferences  properly  to  be  made  from 
it,  and  all  the  presumptions  properly  to  be  indulged,  did  the  grantor 
of  the  plaintiff,  in  arriving  at  the  price  he  would  pay,  consider  and 
have  a  right  to  consider,  as  an  element  of  the  value  of  the  land  he 
was  bidding  for,  this  ditch  across  the  tract  giving  this  supply  of 
water  through  it?  Now,  there  is  testimony  tending  to  an  affirmative 
answer;  and  in  our  judgment,  it  was  not  a  correct  disposition  of  the 
case  to  take  it  from  the  consideration  of  the  jury,  and  to  direct  to 
them  their  verdict  in  the  negative. 

In  the  first  place  we  have  shown  the  fact  that  this  pure,  clear 
water  ran  to  this  parcel  of  land  in  full  and  constant  supply.  This 
condition  of  things  was  open  and  visible.  The  presumption  arises 
at  once  that  a  person  of  even  ordinary  judgment  in  quest  of  a  farm 
must  perceive  this  advantage  and  be  influenced  by  a  consideration 
of  its  value.  Then  there  is  express  testimony  that  the  plaintiff's 
grantor,  the  grantee  of  Newbold,  had  been  before  the  conveyance 
to  him,  the  agent  of  Newbold  and  familiar  with  the  premises,  and 
that  he  knew  that  Newbold  was  used  to  pasture  cattle  in  part  on  this 

■47  N.  V  3.  -Yak 


II.  3-]  ARTIFICIAL   WATERCOURSES.  129 

parcel  of  land,  and  that  they  found  their  supply  of  water  in  the  stream 
and  in  the  cove.  The  testimony  also  tends  to  show  that  the  lands 
are  peculiarly  advantageous  for  the  pasturage  of  cattle  in  the  sum- 
mer and  of  keeping  them  through  the  winter,  with  the  ultimate  pur- 
pose of  marketing  them  as  fat  cattle;  and  that  the  supply  of  this 
water  through  this  ditch  was  useful  and  necessary  therefor.  And 
the  proof  is  ample  that  the  water  was  of  use  to  the  land  and  of  great 
value,  and  there  is  testimony  tending  to  show  that  it  is  highly 
necessary  to  its  full  enjoyment. 

We  think  that  with  instructions  from  the  court  to  the  jury  in 
accordance  with  the  rules  announced  in  21  N.  Y.  supra,  it  should 
have  been  submitted  to  them  to  say  whether  the  grantee  of  New- 
bold  of  the  parcel  of  land  now  owned  by  the  plaintiff,  contracted  for 
it  in  reference  to  its  condition  in  respect  to  this  ditch  and  its  water 
at  the  time  of  the  sale,  and  whether  to  be  deprived  of  it  is  to  lose 
something  of  value  and  of  necessity. 

Nor  would  an  affirmative  answer  to  it  and  a  judgment  in  accord- 
ance therewith  impose  upon  the  defendants,  as  is  argued,  the  neces- 
sity of  keeping  up  a  swamp  on  his  land.  The  benefits  and  burdens 
of  this  ditch  are  reciprocal,  to  be  enjoyed  and  borne  by  all  the  lands. 
As  the  ditch  was  to  the  observation  as  much  an  aqueduct  from  one 
parcel  as  an  aqueduct  to  another,  so  it  must  continue  to  be.  And 
the  defendant  has  as  good  right  that  it  should  lead  away  all  the 
surface  water  and  all  that  Indian  Creek  brought  down,  as  the  plain- 
tiff has  that  it  should  be  led.  So  that,  as  the  defendant  may  not  •, 
obstruct  the  ditch  to  divert  the  water,  the  plaintiff  may  not  obstruct 
it  to  prevent  its  flow.  And  as  the  plaintiff  claims  that  the  defendant 
may  not  ditch  on  his  own  land  and  drain  away  this  water  in  another 
direction,  he  must  permit  him  to  keep  open  the  ditch  on  the  plain- 
tiff's land,  so  that  it  be  effectual  for  the  defendant's  benefit. 

It  is  also  urged  that  the  act  of  the  defendant  complained  of  by  the 
plaintiff  violated  no  right  of  his,  for  that  the  ditch,  the  capacity  of 
which  he  increased,  was  upon  the  land  of  the  defendant's  grantor 
when  Newboid  sold  to  the  plaintiff's  grantor.  The  act  which  the 
plaintiff  complains  of  is  the  diversion  of  water  which,  when  his 
grantor  bought  of  Newboid,  .was  flowing  to  the  land  purchased.  It 
matters  not  how  this  diversion  is  effected,  whether  by  digging  a  new 
ditch  or  deepening  an  oid  one.  The  reciprocal  rights  of  the  parties/ 
(a  certain  state  of  facts  existing)  are  to  have  the  status  of  the  tract! 
maintained  as  it  was  when  Newboid  sold.  If  water  then  ran 
through  the  ditch  which  Ayrault  has  deepened,  he  may  keep  a 
stream  there  of  the  same  volume  it  then  had,  but  may  not  increase 

LAW  OF  PROP.   IN  LAND  —  9 


130      CONSTITUENTS   AND    INCIDENTS    OF    LAND.       [PT.  II.  CH.  II. 

its  volume  by  a  diversion  of  the  water  which  then  flowed  to  the 
plaintiff's  land. 

And  we  remark  here,  that  we  do  not  mean  to  conflict  with  cases 
cited  by  the  respondent,  such  as  Arkivright  v.  Gill,  5  Me.  &  Welsby, 
203.  We  think  that  they  will  be  found  to  be  cases  in  which  the 
owner  of  land,  having  for  a  time  drained  the  surface  water  from  it 
in  a  certain  direction,  while  still  the  owner  of  the  same  tract,  and 
the  owner  of  the  whole  of  it,  sees  fit  to  change  the  direction  of  the 
drainage.  Though  he  may  have  yielded  in  the  first  place  a  benefit 
to  other  land  by  his  method,  he  was  not  precluded  from  abandon- 
ing it  and  adopting  another,  for  he  had  sold  none  of  the  land  bene- 
fited to  one  who  had  contracted  for  it  in  reference  to  its  condition 
of  benefit.  It  was  doing  with  his  own  as  he  had  a  right,  the  right 
of  no  one  else  having  intervened  by  his  act.  It  was  a  dominant 
tenement  foregoing  the  enjoyment  of  an  easement  upon  a  servient 
one.  In  the  case  in  hand  both  tenements,  by  the  acts  of  the  former 
owner  of  both  as  a  whole,  have  become  each  dominant  and  each 
servient  to  the  other,  as  their  respective  needs  require.  Had  there 
been  no  drain  until  the  severance  of  the  great  tract  into  parcels, 
and  then  the  defendant  on  his  parcel  had  made  drains  leading  to 
the  plaintiff's  parcel,  which  stopping  afterwards,  he  had  made  others 
elsewhere,  and  of  this  the  plaintiff  had  complained,  the  cases  cited 
would  have  been  in  point. 

The  point  is  not  taken  in  this  court  by  the  respondent  that  the 
complaint  of  the  plaintiff  does  not  put  his  right  of  action  upon  this 
ground.  Nor  does  it  appear  to  have  been  taken  below.  Doubtless, 
if  it  had  been,  the  ample  power  of  the  court  to  allow  amendments 
would  have  obviated  the  objection  without  injury  to  either  party. 

The  judgment  of  the  court  below  should  be  reversed,  a  new  trial 

ordered,  with  costs  to  abide  the  event. 

Judgment  reversed. 


4.   Property  in  Underground  Waters. 

OCEAN  GROVE  CAMP-MEETING   ASSOCIATION  v. 
ASBURY  PARK. 

40  New  Jersey  Equity,  447.  —  1885. 

Bird,  V.  C.  —  More  than  fifteen  years  ago  the  complainants  pur- 
chased  a  large  tract  of  land  fronting  upon  the  ocean,  chiefly  for  the 
purpose  of  a  summer  resort,  to  exercise  the  right  of  worship.  The 
enterprise  has  so  grown    that  in  winter  it  has  a  population  of  about 


II.  4-]  UNDERGROUND    WATERS.  I  3  I 

five  thousand,  and  in  summer  of  ten  thousand  or  fifteen  thousand. 
The  authorities  soon  discovered  that  to  preserve  the  good  health  of 
the  residents  and  visitors  it  was  absolutely  necessary  to  improve 
their  water  supply  and  sewerage  system.  To  do  this  they  bored  for 
water,  and  at  the  depth  of  over  four  hundred  feet  struck  water 
which  gave  them  a  flow  of  fifty  gallons  per  minute  at  an  elevation 
above  the  surface  of  twenty-eight  feet.  This  they  carried  into  the 
city  by  means  of  pipes,  and  supplied  therewith  about  seventy  hotels 
and  cottages.  They  also  applied  it  to  the  improvement  of  their 
sewerage  system.  The  volume  of  water  thus  produced  continued 
to  flow  undiminished  in  quantitly  and  with  unabated  force  until  the 
action  of  the  defendants  now  complained  of,  and  to  restrain  which 
the  bill  in  this  cause  was  filed. 

The  commissioners  of  Asbury  Park,  a  corporate  body,  purchased 
a  large  tract  of  land  immediately  north  and  adjacent  to  the  tract 
owned  by  Ocean  Grove.  Under  their  management  this,  too,  has 
become  a  famous  seaside  resort.  Its  population  is  equal  to,  if  not 
greater,  at  all  times,  than  that  of  Ocean  Grove.  The  authorities 
saw  a  like  necessity  for  an  increased  supply  of  wholesome  water. 
They  entered  into  a  contract  with  others,  a  portion  of  these  defend- 
ants, to  procure  for  them  water  by  boring  in  the  earth.  These, 
their  agents,  sank  several  shafts  to  the  depth  of  over  four  hundred 
feet  without  satisfactory  success.  One  shaft  yielded  about  four 
gallons  to  the  minute,  and  another,  which  yielded  the  most,  only 
nine.  All  of  these  wells,  were  upon  the  land  and  premises  of  the 
Asbury  Park  Association.  It  became  evident,  and  is  manifest  to 
the  most  casual  observer,  that  these  wells  would  not  supply  the 
volume  of  water  needed.  It  was  also  manifest  that  the  experiment 
to  procure  water  by  digging  upon  their  own  land  had  been  quite 
reasonably  extended,  although  not  so  complete  as  to  satisfy  the 
mind  that  they  cannot  obtain  water  on  their  own  premises  as  well 
as  elsewhere,  since  it  is  in  evidence  that  there  are  two  wells  on  their 
premises,  sunk  by  individuals,  which  produce  fifteen  gallons  each 
per  minute,  being  as  much  in  quantity  as  they  procure  from  the  well 
which  is  complained  of. 

Failing  in  their  efforts  upon  their  own  premises  they  go  elsewhere, 
on  the  land  owned  by  individuals,  and,  procuring  a  right  from 
individual  owners,  sink  a  shaft  upon  the  public  highway,  near  to  the 
land  of  the  complainants,  and  within  five  hundred  feet  of  the  com- 
plainant's well.  This  bore  extended  to  the  depth  of  four  hundred 
and  sixteen  feet,  within  eight  feet  of  the  depth  of  complainant's 
well.  At  this  depth  they  secured  a  flow  of  water  at  the  rate  of  thirty 
gallons  per  minute,  and  the  supply  from  the  complainant's  well  was 


I32      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.   CH.  II. 

almost  immediately  decreased  from  fifty  gallons  to  thirty  per  minute. 
The  diminution  in  water  was  immediately  felt  by  many  of  those  who 
depended  for   a  supply  from  this  source  in  Ocean  Grove. 

The  Asbury  Park  authorities  propose  to  sink  other  wells  still 
nearer  the  well  of  the  complainants.  This  bill  asks  that  they  may 
be  prohibited  from  so  doing,  and  that  they  may  be  commanded  to 
close  the  well  already  opened,  which,  it  is  alleged,  is  supplied  from 
the  same  source  that  the  complainants'  well  is  supplied  from. 

The  complainants  are  first  in  point  of  time.  They  are  upon  their 
own  land  and  premises.  They  procure  water  from  their  own  soil  to 
be  used  in  connection  with  their  said  premises,  in  the  improvement 
and  beneficial  enjoyment  of  their  occupation. 

In  this  they  have  exercised  an  indefeasible  and  unqualified 
right.  It  matters  not  whether  the  water  which  they  obtain  is  from 
a  pond  or  underground  basin,  or  only  the  result  of  percolation,  or 
from  a  flowing  stream.  The  defendants  went  from  their  own  land 
upon  the  land  of  strangers,  and  obtained  permission  to  bore  for 
water,  and  there  sink  their  shaft,  procuring  water  from  the  same 
source  that  the  complainants  procured  their  water,  and  diverted  it 
and  carried  it  to  their  premises,  three-eighths  of  a  mile,  for  use. 

Can  they  be  restrained  from  doing  this?  A  very  careful  considera- 
tion of  a  great  many  authorities  leads  me  to  the  conclusion  that  they 
cannot  at  the  instance  of  the  complainant:  Angell  on  Water- 
Courses,  sees.  109-114,  inclusive;  Gould  on  Waters,  sec.  280;  Bal- 
lard v.  Tomlinson,  L.  R.  26  Ch.  Div.  194;  Chasemore  v.  Richards,  7 
H.  L.  Cas.  349;  5  H.  &  N.  982;  Acton  v.  Blundell,  12  M.  &  W.  324; 
Chase  v.  Silverstone,  62  Maine,  175;  Roath  v.  Driscoll,  20  Conn.  533; 
Delhi  v.  Youmans,  45  N.  Y.  362;  Goodale  v.  Tattle,  29  N.  Y.  459; 
JVheatley  v.  Baugh,  25  Pa.  St.  528;  Brazier  v.  Brown,  12  Ohio 
St.  294. 

The  courts  all  proceed  upon  the  ground  that  waters  thus  used  and 
diverted  are  waters  which  percolate  through  the  earth,  and  are  not 
distinguished  by  any  certain  and  well-defined  stream,  and,  conse- 
quently, are  the  absolute  property  of  the  owner  of  the  fee  as  com- 
pletely as  are  the  ground,  stones,  minerals,  or  other  matter  to  any 
depth  whatever  beneath  the  surface.  The  one  is  just  as  much  the 
subject  of  use,  sale,  or  diversion  as  the  other.  The  owner  of  a  mine 
en<  ounters  innumerable  drops  of  water  escaping  from  every  crevice 
and  fissure;  these,  when  collected,  interfere  with  his  progress,  and  he 
may  remove  them,  although  the  spring  or  well  of  the  landowner 
below  l>e  diminished  or  destroyed.  So,  the  owner  or  owners  of  a 
,  marsh,  or  meadow  may  sink  wells  therein,  and  carry  off  the 
water  <  olid  ted  in  them,  to  the  use  or  enjoyment  of  a  distant  village 


II.  4-]  UNDERGROUND   WATERS.  I33 

or  town,  although  the  waters  of  a  large  stream  upon  the  surface  be 
thereby  so  diminished  as  to  injure  a  mill-owner  who  had  enjoyed  the 
use  of  the  waters  of  the  stream  for  many  years.  Upon  these  prin- 
ciples there  can  be  no  doubt  but  that  every  lot-owner  in  Ocean  Grove 
or  Asbury  Park  could  sink  a  well  on  his  lot  to  any  depth,  and,  in 
case  one  should  deprive  his  neighbor  of  a  portion  or  all  of  his  sup- 
posed treasure,  no  action  would  lie.  A  moment's  reflection  will 
enable  every  one  to  perceive  that  such  conditions  or  contingencies 
are  necessarily  incident  to  the  ownership  of  the  soil. 

In  the  case  before  me  there  is  no  proof  that  the  waters  in  question 
are  taken  from  a  stream,  and  I  have  no  right  to  presume  that  they 
are.     The  presumption  is  the  other  way. 

It  seems  to  be  my  very  plain  duty  to  discharge  the  order  to  show 
cause,  with  costs. 


THE  TRUSTEES  OF  THE  VILLAGE  OF  DELHI  v. 
YOUMANS. 

45  New  York,  362.  —  1871. 

By  the  Court,  Peckham,  J.  —  If  the  action  of  the  defendant  took 
the  water  away  from  the  springs,  after  it  had  reached  there,  after  it 
had  become  part  of  an  open,  running  stream,  then  this  action  would 
lie.  Rawstron  v.  Taylor,  $$  Eng.  L.  &  Eq.  428;  Broadbent  v.  Rams- 
botham,  34  Id.  553;  Chasemore  v.  Richards,  7  House  of  Lords  Cases, 
349;  Pixley  v.  Clark,  35  N.  Y.  520;  Goodale  v.  Tuttle,  29  Id.  459; 
Ellis  v.  Duncan,  21  Barb.  230,  affirmed  in  this  court,  but  not  reported. 

But  if  it  merely  prevent  the  water  from  reaching  the  spring  or 
open,  running  stream,  by  intercepting  its  percolation  or  underground 
currents,  by  digging  a  well  upon  the  defendant's  own  land,  for  the 
use  of  his  family  and  stock,  this  action  will  not  lie.  The  law  is 
settled  in  that  way,  both  here  and  in  England.     (See  same  cases.) 

The  facts  in  this  case,  as  found  by  the  justice  who  tried  it,  do  not 
show  that  the  water  has  been  taken  away  from  the  spring  or  running 
surface  stream  after  it  had  reached  there.  On  the  contrary,  the 
inference  from  his  findings  would  rather  seem  the  other  way.  Nor 
is  there  any  request  to  find  otherwise,  nor  any  exception  on  that 
point. 

Every  inference  and  presumption  that  can  be  reasonably  enter- 
tained must  be  indulged  in  favor  of  affirming  a  judgment.  It  is  a 
well-settled  rule  that  the  party  who  alleges  error  must  show  it. 

The  doctrine  of  lateral  support  of  adjoining  land  cannot  aid  the 


134      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.  CII.  II. 

plaintiff's  case.      I  do   not  think  it  has  any  application  to  the  facts 
as  found. 

It  may  well  be  that  the  plaintiffs  have  been  injured,  legally  injured, 
by  the  acts  of  the  defendant.  But  the  facts  as  found  do  not  make 
it  appear.  In  the  absence  of  any  request  to  find,  or  exception  to 
refusal  to  find,  other  facts,  we  cannot  consider  the  evidence  with  a 
view  to  decide  whether  other  facts  may  not  be  regarded  as  suffi- 
ciently proved. 

Judgment  affirmed. 


HALE  v.  McLEA. 
53  Cal.,  578.  —  1879. 


Suit  for  an  injunction. 

The  court  below  found:  "  That  the  plaintiff  and  defendant  were 
the  owners  of  coterminous  tracts  of  land.  In  the  vicinity  of  the 
division  line,  running  north  and  south  between  the  parties,  is  the 
subject  of  the  controversy.  Upon  the  side  of  a  ridge,  upon  the  land 
of  plaintiff,  at  a  point  about  twenty-eight  feet  east  of  the  land  of 
defendant,  a  natural  spring  flows  from  the  surface  of  the  ground. 
This  spring  is  a  small  one,  furnishing  a  very  small  supply  of  water. 
It  has  been  utilized  by  the  plaintiff  for  many  years,  and  the  water 
conveyed  to  troughs,  furnishing  water  for  the  stock  of  the  plaintiff. 
The  spring  furnishes  the  principal  supply  of  the  plaintiff's  farm  at 
this  point,  and  is  the  only  water  he  has  for  the  cattle  that  pasture 
upon  this  part  of  his  land.  He  also  proposes  to  use  and  will  require 
this  water  for  a  proposed  residence  he  intends  to  soon  build.  From 
this  natural  spring  upon  the  land  of  plaintiff,  extending  toward  the 
west,  and  upon  the  land  of  defendant,  a  line  of  bushes,  usually  found 
nowhere  except  over  watercourses,  appeared,  but  there  was  no  other 
indication  of  a  subterranean  stream  upon  defendant's  land  at  this 
point  than  that  indicated  by  these  bushes.  There  was  no  stream  upon 
the  surface,  and  no  depression  or  channel  whatever  appeared  upon 
the  surface  of  either  tract  at  this  point,  and  the  surface  of  the 
ground  was  rocky  and  dry.  The  line  of  bushes  above  referred  to 
was  connected  and  frequent  up  to  the  line  extending  from  this  fence 
to  and  upon  the  land  of  defendant,  and  to  the  pit  there  sunk  by 
defendant.  In  October,  1875,  defendant  dug  a  trench  upon  his  land, 
about  eleven  feet  from  the  division  line.  The  trench  was  parallel 
with  the  division  line,  and  at  right  angles  with  the  line  of  bushes, 
and  was  dug  for  the  sole  purpose  of  intercepting  a  subterranean 
Stream    which   defendant    supposed    flowed  to  the  spring  of  plaintiff. 


II.  4-]  UNDERGROUND    WATERS.  1 35 

Any  person  of  ordinary  judgment  would  have  expected  to  intercept 
the  stream  at  this  point,  from  the  apparent  situation  and  surround- 
ings. *  *  *  At  the  bottom  of  the  trench,  and  upon  the  western 
side,  was  found  a  fissure  of  loose,  fragmentary  rock,  of  which  the 
hill  was  chiefly  composed.  Through  these  fragments  at  this  particu- 
lar point,  flowed  a  small  stream  of  water.  The  defendant  opened 
this  pit,  and  connected  it  with  pipes  laid  through  the  trench,  and  so 
arranged  it  that  all  the  water  flowing  in  from  the  crevice  was  taken 
in  a  pipe  through  his  trench.  Immediately  upon  the  opening  of  his 
trench  and  the  laying  of  this  pipe,  the  water  ceased  to  flow  in  the 
spring  of  the  plaintiff  and  has  not  since  flowed  there.  The  defendant 
in  digging  this  trench  had  but  one  purpose,  namely,  to  secure  to 
himself  the  subterranean  water  that  he  believed  existed  at  this  point; 
he  knew  that  this  was  the  source  of  the  supply  to  plaintiff's  spring, 
and  if  intercepted,  no  water  would  flow  to  the  spring  of  plaintiff. 
He  was  not  actuated  by  malice." 

Judgment  for  plaintiff.     Defendant  appealed. 

By  the  Court,  Crockett,  J. — An  examination  of  the  English 
and  American  decisions  on  the  questions  of  law  involved  in  this 
appeal  leads  us  to  the  conclusion  that,  on  the  facts  admitted  by  the 
pleadings  or  found  by  the  court,  the  right  of  the  defendant  as 
against  the  plaintiff  to  use  the  water  of  the  subterranean  stream, 
which  is  the  subject  of  the  action,  is,  at  most,  no  greater  than  if  it 
was  a  surface  stream,  on  which  the  defendant  was  the  upper  and  the 
plaintiff  a  lower  riparian  owner.  Tested  by  this  rule,  the  utmost 
that  can  be  claimed  for  the  defendant  on  the  facts  is,  that  he  is 
entitled  to  take  from  the  stream  as  much  water  as  he  needs  for 
watering  his  cattle  and  for  domestic  uses,  such  as  cooking,  washing, 
and  the  like,  leaving  the  surplus  to  flow  to  the  spring  of  the  plaintiff 
in  its  natural  channel.  But  the  findings  show  that  the  defendant 
has  diverted  the  whole  body  of  the  stream  through  pipes,  in  such  a 
manner  that  no  portion  of  the  water  can  reach  the  spring;  and  the 
surplus,  at  the  commencement  of  the  action,  was  running  to  waste, 
as  appears  from  the  admissions  in  the  pleadings.  If  it  were  a  surface 
stream,  the  plaintiff  would  be  entitled  to  have  it  flow  to  and  across 
his  lands,  in  its  natural  channel,  subject  only  to  the  right  of  the 
defendant  to  use  so  much  of  the  water  as  is  necessary  to  supply  his 
natural  or  primary  wants  as  above  indicated;  nor,  on  the  facts 
found,  can  the  defendant  exercise  any  greater  right  in  respect  to  a 
subterranean  stream.  Assuming,  therefore,  that  the  rights  of  the 
defendant  are  precisely  the  same  as  though  it  was  a  surface  stream, 
he  has  exceeded  them  by  diverting  the  whole  body  of  water  from 


I36      CONSTITUENTS   AND    INCIDENTS   OF    LAND.     [PT.  II.  CH.  II. 

its  natural  channel,  instead  of  allowing  the  surplus  to  flow  to  the 
spring  in  its  accustomed  bed. 

But  the  exigency  of  the  case  does  not  require  us  to  decide  that 
the  defendant  has  the  same  right  in  respect  to  a  subterranean  stream 
as  though  it  was  a  surface  stream  flowing  across  his  land;  and  our 
decision  is  only  to  the  effect  that,  if  it  be  assumed  his  rights  are  the 
same,  he  has,  nevertheless,  exceeded  them  by  diverting  the  whole 
body  of  the  stream,  instead  of  allowing  the  surplus  to  flow  to  the 
spring  in  its  natural  channel. 

There  is  no  question  in  this  case  involving  the  right  of  a  riparian 
owner  to  the  use  of  water  for  purposes  of  irrigation ;  nor  is  the  point 
before  us  whether  or  not  a  landowner  may  be  restrained  from  divert- 
ing or  obstructing  the  flow  of  an  underground  current,  running  in  a 
denned  channel  across  his  land,  and  which  supplies  a  spring  or  well 
of  the  adjoining  lands,  if  it  become  necessary  to  divert  or  obstruct 
the  stream  in  the  prosecution  of  the  business  of  mining,  or  any  other 
legitimate  enterprise  on  his  own  land;  nor  to  what  extent,  if  at  all, 
it  would  affect  the  question  if  the  underground  current  was  not 
known  to  exist  until  the  fact  was  discovered  in  the  prosecution  of 
the  work.     These  are  grave  questions  which  the  exigency  of  the 

present  case  does  not  require  us  to  decide. 

Judgment  affirmed. 

Rhodes,  J.,  concurring:  —  I  concur  in  the  judgment  on  the  ground 
that  the  defendant,  in  my  opinion,  has  no  right  to  divert  the  waters 
of  the  subterranean  stream,  if  the  spring  of  the  plaintiff  will  thereby 
be  materially  injured. 


III.  lee  as  incident  to  land. 

1.   Ice  Formed  Over  Lands  of  Private  Owners. 

WASHINGTON  ICE  CO.  v.  SHORTALL. 

101  Illinois,  46.  — 1881. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  Court. 

This  was  an  action  of  trespass  quare  clausum  f regit,  brought  in  the 
Circuit  Court  of  Cook  county,  by  Shortall,  against  the  Washing- 
ton Ice  Company,  for  cutting,  removing,  and  appropriating,  in 
January  and  February,  1879,  a  quantity  of  ice  which  had  formed 
over  the  bed  of  the  Calumet  river,  within  the  limits  of  plaintiff's 
land,  111  Cook  county.  Defendant  pleaded  the  general  issue,  and 
libcrum  tenementum.      A  verdict  and  judgment  were  rendered  in  favor 


III.   i.]  ICE   OVER    LANDS   OF    PRIVATE    OWNERS.  137 

of  plaintiff  for  $562.40,  which  judgment,  on  appeal  to  the  Appellate 
Court  for  the  First  District,  was  affirmed,  and  defendant  appealed 
to  this  Court. 

On  the  trial,  the  patent  from  the  United  States  to  Lafrombois  and 
Decant  was  introduced  in  evidence,  showing  that  there  was  no 
restriction  or  reservation  by  the  government,  and  that  the  locus  in 
quo  was  embraced  in  the  125.31  acres  the  patent  conveyed.  Under 
this  patent  plaintiff  derived  title. 

From  the  evidence  it  appears  that  the  call  of  125.31  acres  con- 
tained in  the  patent,  required  that  the  bed  of  the  river  should  be 
included  to  make  that  quantity;  that  the  Calumet  river  extended 
from  Lake  Michigan  westward  past  the  plaintiff's  premises,  where  it 
is  between  165  and  200  feet  wide,  is  in  fact  a  navigable  river;  that 
the  defendant  company  owned  ice-houses  on  its  own  property  on  the 
next  lot  east  of  plaintiff's,  and  that  in  operating  on  the  ice  it  did  not 
go  on  the  plaintiff's  land,  save  as  it  entered  upon  the  ice;  that  it 
first  gathered  the  ice  in  front  of  its  own  land  from  the  river,  and 
then  commenced  to  take  the  ice  opposite  the  plaintiff's  premises. 

The  court,  at  plaintiff's  request,  instructed  the  jury  that  the 
plaintiff  was  the  owner  of  the  whole  bed  of  the  river  flowing  through 
his  premises;  that  when  the  water  became  congealed,  the  ice  attach- 
ing to  the  soil  constituted  a  part  thereof,  and  belonged  to  the  owner 
of  the  bed  of  the  stream,  and  that  he  could  maintain  trespass  for 
the  wrongful  entry  and  taking  the  ice;  and  that  the  measure  of 
damages,  in  case  of  a  finding  for  plaintiff,  would  be  the  value  of  the 
ice  as  soon  at  it  existed  as  a  chattel  —  that  is,  as  soon  as  it  had  been 
scraped,  plowed,  sawed,  cut  and  severed,  and  ready  for  removal. 
Defendant  excepted  to  the  giving  of  such  instruction,  and  asked  the 
court  to  instruct  the  jury  that  a  riparian  owner  on  the  banks  of  a 
river,  navigable  in  fact,  has  no  property  in  the  ice  formed  in  the 
midst  of  the  stream,  where  he  has  done  nothing  to  pond  or  separate 
it;  but  that  any  person  might,  as  against  such  riparian  owner,  where 
he  could  gain  access  without  passing  over  the  shore  or  banks  of  the 
owner,  enter  upon  the  ice  and  remove  the  same,  without  cause  of 
action  or  damage  to  such  riparian  owner,  and  that  if  such  access,  as 
above  stated,  had  been  gained,  then,  at  most,  plaintiff  could  recover 
but  nominal  damages,  even  if  the  action  of  trespass  be  sustained, — 
which  was  refused,  and  defendant  excepted.  The  giving  and  refus- 
ing of  instructions  is  assigned  as  error. 

It  may  be  well  to  inquire,  first,  whether  plaintiff,  as  riparian  pro- 
prietor on  both  sides  of  the  Calumet  river,  is  the  owner  of  the  bed 
of  the  stream  within  the  limits  of  his  land.  By  the  common  law, 
only  arms  of  the  sea,  and  streams  where  the  tide  ebbs  and  flows  are 


138      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

regarded  navigable.  The  stream  above  the  tide,  although  it  may 
be  navigable  in  fact,  belongs  to  the  riparian  proprietors  on  each  side 
of  it  to  its  center,  and  the  only  right  the  public  has  therein  is  an 
easement  for  the  purpose  of  navigation.  Chancellor  Kent,  in  his 
commentaries,  declares  it  as  settled  that  grants  of  land  bounded  on 
rivers  or  upon  their  margins,  above  tide-water,  carry  the  exclusive 
right  and  title  of  the  grantee  to  the  center  of  the  stream,  subject 
to  the  easement  of  navigation,  unless  the  terms  of  the  grant  clearly 
denote  the  intention  to  stop  at  the  edge  or  margin  of  the  river.  If 
the  same  person  be  the  owner  on  both  sides  of  the  river,  he  owns 
the  whole  river  to  the  extent  of  the  length  of  his  lands  upon  it. 
3  Comm.  427,  428,  Marg.  And  this  title  to  the  middle  of  the  stream 
includes  the  water,  the  bed,  and  all  islands.  2  Hilliard  on  Real 
Prop.  92;  Angell  on  Water-Courses,  sec.  5. 

This  rule  of  the  common  law  has  been  adopted  in  thi^s  State,  and 
is  here  the  settled  doctrine.  It  was  so  held  in  Middletonv.  Pritch- 
ard,  3  Scam.  510,  and  If  ouch  v.  Yates,  82  111.  179,  with  regard  to 
the  Mississippi  river  where  it  bounds  this  State;  in  Braxon  v.  Bressler, 
64  111.  488,  as  to  Rock  river;  City  of  Chicago  v.  Laflin,  49  111.  172, 
and,  City  of  Chicago  v.  McGinn,  5  111.  266,  in  regard  to  the  Chicago 
river. 

The  Calumet  river  then,  being  non-tidal,  and  plaintiff  owning 
lands  on  both  sides  of  it,  he  is  the  owner  of  the  whole  of  the  bed  of 
the  stream  to  the  extent  of  the  length  of  his  lands  upon  it. 

The  next  question  respects  the  ownership  of  ice  formed  over  the  bed 
of  the  river  passing  through  the  land.  It  is  objected  by  defendant 
that  water  in  a  running  stream  is  not  the  property  of  any  man  —  that 
no  proprietor  has  a  property  in  the  water  itself,  but  a  simple  usufruct 
while  it  passes  along;  but  manifestly  different  considerations  apply 
to  water  in  a  running  stream  when  in  a  liquid  state  and  when  frozen. 

In  Agawam  Canal  Co.  v.  Edwards,  36  Conn.  497,  it  is  said:  '  The 
principle  contained  in  the  maxim,  '  cujus  est  solum  ejus  est  usque  ad 
tcelum,'  gives  to  a  riparian  owner  an  interest  in  a  stream  which  runs 
over  his  land.  But  it  is  not  a  title  to  the  water  —  it  is  a  usufruct 
merely,  — a  right  to  use  it  while  passing  over  the  land.  The  same 
right  pertains  to  the  land  of  every  other  riparian  proprietor  on  the 
same  stream  and  its  tributaries;  and  as  each  has  a  similar  and  equal 
usufructuary  right,  the  common  interest  requires  that  the  right  should 
be  exercised  and  enjoyed  by  each  in  such  a  reasonable  manner  as 
not  to  injure  unnecessarily  the  right  of  any  other  owner,  above  or 
below." 

In  Elliott  v.  Fitchburg  Railroad  Co.,  10  Cush.  191,  Shaw,  C.  J., 
says;     "  The  right  to  flowing  water  is  now  well  settled  to  be  a  right 


III.   i.J  ICE   OVER    LANDS    OF    PRIVATE   OWNERS.  139 

incident  to  property  in  the  land,  it  is  a  right  publico  juris,  of  such 
character  that  whilst  it  is  common  and  equal  to  all  through  whose 
land  it  runs,  and  no  one  can  obstruct  or  divert  it,  yet  as  one  of  the 
beneficial  gifts  of  Providence,  each  proprietor  has  a  right  to  a  just 
and  reasonable  use  of  it  as  it  passes  through  his  land;  and  so  long 
as  it  is  not  wholly  obstructed  or  diverted,  or  no  larger  appropriation 
of  the  water  running  through  it  is  made  than  a  just  and  reasonable 
use,  it  cannot  be  said  to  be  wrongful  or  injurious  to  a  proprietor 
lower  down.  .  .  .  Still,  the  rule  is  the  same,  that  each  proprie- 
tor has  a  right  to  the  reasonable  use  of  it  for  his  own  benefit,  for 
domestic  use,  and  for  manufacturing  and  agricultural  purposes." 

In  Rex  v.  Wharton,  12  Mod.  510,  Holt,  C.  J.,  says:  "  If  a  river 
run  contiguously  between  the  land  of  two  persons,  each  of  them  is,  of 
common  right,  owner  of  that  part  of  the  river  which  is  next  his  land. ' ' 

Hilliard  states  that  a  water-course  is  regarded  in  law  as  a  part  of 
the  land  over  which  it  flows.      2  Hilliard  on  Real  Prop.  100. 

It  will  thus  be  seen  that  the  riparian  owner,  as  such,  has  rights 
with  respect  to  water  in  a  running  stream,  — he  has  a  right  of  use, 
which  right  authorizes  the  actual  taking  of  a  reasonable  quantity  of 
the  water  for  his  purposes.  The  limitation  in  extent  of  the  use  of 
the  water  is,  that  it  shall  not  interfere  with  the  public  right  of  navi- 
gation, nor  in  a  substantial  degree  diminish  and  impair  the  right  of 
use  of  the  water  by  a  lower  or  upper  proprietor,  as  it  passes  along 
his  land.  The  only  opposing  rights  are  such  rights  of  the  public, 
and  such  upper  and  lower  proprietors.  But  when  the  water  becomes 
congealed,  and  is  in  that  state,  these  opposite  rights  are  in  nowise 
concerned.  The  ice  may  be  used  and  appropriated  without  detri- 
ment to  the  right  of  navigation  by  the  public,  or  to  other  riparian 
owners'  right  of  use  of  the  water  of  the  stream  when  flowing  over 
their  land.  The  just  and  reasonable  use  of  the  water  which  belongs 
to  the  riparian  proprietor  would  be,  in  such  case  of  congealed  state 
of  the  water,  the  unlimited  use  and  appropriation  of  the  ice  by  him, 
as  it  would  be  no  interference  with  rights  of  others.  We  are  of 
opinion  there  is  such  latter  right  of  use,  and  that  it  should  be  held 
property,  of  which  the  riparian  owner  cannot  be  deprived  by  a  mere 
wrongdoer.  When  water  has  congealed  and  become  attached  to  the 
soil,  why  should  it  not,  like  any  other  accession,  be  considered 
part  of  the  realty?  Wherein,  in  this  regard,  should  the  addition  of 
ice  formed  over  the  bed  of  a  stream  be  viewed  differently  from 
alluvion,  which  is  the  addition  made  to  land  by  the  washing  of  the 
sea  or  rivers?  And  we  do  not  perceive  why  there  is  not  as  much 
reason  to  allow  to  the  riparian  owner  the  same  right  to  take  ice  as 
to  take  fish,  which  latter  is  an  exclusive  right  in  such  owner. 


140      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

In  McFarlin  v.  Essex  Co.,  10  Cush.  309,  Shaw,  Ch.  J.,  remarked: 
"  It  is  now  perfectly  well  established  as  the  law  of  this  Common- 
wealth, that  in  all  waters  not  navigable  in  the  common-law  sense 
of  the  term, —  that  is,  in  all  waters  above  the  flow  of  the  tide, —  the 
right  of  fishery  is  in  the  owner  of  the  soil  upon  which  it  is  carried 
on,  and  in  such  rivers  that  the  right  of  soil  is  in  the  owner  of  the 
land  bounding  upon  it,  if  the  same  person  owns  the  land  on  both 
sides,  the  property  in  the  soil  is  wholly  in  him,  subject  to  certain 
duties  to  the  public;  and  if  different  persons  own  the  land  on  oppo- 
site sides,  each  is  proprietor  of  the  soil  under  the  water  to  the 
middle  or  thread  of  the  river." 

The  riparian  proprietor  has  the  sole  right,  unless  he  has  granted 
it,  to  fish  with  nets  or  seines  in  connection  with  his  own  land.  Angell 
on  Water-Courses,  sec.  67. 

In  Adams  v.  Pease,  2  Conn.  481,  it  was  held  that  the  owners  of 
land  adjoining  the  Connecticut  river  above  the  flowing  and  ebbing 
of  the  tide,  have  an  exclusive  right  of  fishery  opposite  to  their  land, 
to  the  middle  of  the  river;  and  that  the  public  have  an  easement  in 
the  river  as  a  highway,  for  passing  and  repassing  with  every  kind 
of  water  craft;  so,  too,  sea  weed  thrown  upon  the  shore  belongs  to 
the  owner  of  the  soil  upon  which  it  is  cast.  Emans  v.  Turnbull,  2 
Johns.  313. 

The  exclusive  right  in  the  owner  to  take  the  ice  formed  over  his 
land,  is  an  analogous  right  to  those  other  ones  which  are  acknowl- 
edged to  exist  in  the  subjects  which  have  been  mentioned,  and  may, 
with  like  propriety,  be  recognized.  It  is  connected  with  and  in  the 
nature  of  an  accession  to  the  land,  being  an  increment  arising  from 
formation  over  it,  and  belonging  to  the  land  properly,  as  being 
included  in  it  in  its  indefinite  extent  upwards. 

Ice,  from  its  general  use,  has  come  to  be  a  merchantable  com- 
modity of  value,  and  the  traffic  in  it  a  quite  important  business.  It 
would  not  be  in  the  interest  of  peace  and  good  order,  nor  consistent 
with  legal  policy,  that  such  an  article  should  be  held  a  thing  of  com- 
mon right,  and  be  left  the  subject  of  general  scramble,  leading  to 
acts  of  force  and  violence.  In  reference  to  the  rule  which  we  here 
adopt,  of  assigning  to  the  owner  of  a  bed  of  a  stream  property  in 
the  ice  which  forms  over  it,  we  may  well  use,  as  fitly  applying,  the 
language  of  Hosmer,  J.,  in  Adams  v.  Pease,  supra,  in  speaking  of  the 
common-law  rule  as  to  the  right  of  Fishery,  viz.:  '  The  doctrine 
of  the  common  law,  as  1  have  stated  it,  promotes  the  grand  ends  of 
civil  society,  by  pursuing  that  wise  and  orderly  maxim  of  assigning 
to  everything  capable  of  ownership  a  legal  and  determinate  owner." 

The  views  we  hold  are  in  accordance  with  the  holding  in  The  State 


III.   i.]  ICE   OVER   LANDS   OF    PRIVATE   OWNERS.  141 

v.  Potimeyer,  2>2,  Ind.  4°2>  that  when  the  water  of  a  flowing  stream 
running  in  its  natural  channel  is  congealed,  the  ice  attached  to  the 
soil  constitutes  a  part  of  the  land,  and  belongs  to  the  owner  of  the 
bed  of  the  stream,  and  he  has  the  right  to  prevent  its  removal. 
See,  further,  relative  to  the  subject,  Myer  v.  Wkitaker,  55  How.  Pr. 
Rep.  376;  Lorman  v.  Benson,  8  Mich.  iS;  Mill  River  Woolen  Manu- 
facturing Co.  v.  Smith,  34  Conn.  462;  Brown  v.  Brown,  30  N.  Y.  519. 

Defendant  claims  that  it  committed  no  trespass  in  taking  the  ice, 
because  the  ice  in  the  midst  of  a  stream  navigable  in  fact,  is  naturally 
an  obstruction  to  navigation,  and  that  anyone  has  the  right,  having 
obtained  access  independent  of  the  riparian  owner,  to  enter  upon 
the  ice  and  remove  it.  We  said  in  Braxon  v.  Bressler,  above  cited: 
"  Where  the  river  is  navigable,  the  public  have  an  easement  or  a 
right  of  passage  upon  it  as  a  highway,  but  not  the  right  to  remove 
the  rock,  gravel,  or  soil,  except  as  necessary  to  the  enjoyment  of 
the  easement."  The  same  is  to  be  said  as  to  the  ice  here.  But  it 
was  not  removed  as  necessary  for  the  enjoyment  of  the  public  ease- 
ment of  navigation,  — it  was  for  the  purpose  only  of  the  appropria- 
tion of  it  for  defendant's  gain. 

As  to  the  instruction  as  to  the  measure  of  damages,  we  think  the 
case  is  analogous  to  those  where  coal  is  taken  from  the  soil,  and 
that  the  instruction  is  sustained  by  former  decisions  of  this  court  in 
those  cases:  Illinois  and  St.  Louis  R.  R.  and  Coal  Co.  v.  Ogle,  92 
III.  353;  McLean  County  Coal  Co.  v.  Lenuou,  91  Id.  561;  Illinois  and 
St.  Louis  R.  R.  and  Coal  Co.  v.  Ogle,  82  Id.  627;  McLean  Cou/itv 
Coal  Co.  v.  Long,  Si  Id.  359;  Robertson  v.  Jones,  71  Id.  405. 

Perceiving  no  error  in  the  giving  or  refusing  of  instructions  by  the 
Circuit  Court,  the  judgment  of  the  Appellate  Court  is  affirmed. 


THE  BROOKVILLE  AND  METAMORA  HYDRAULIC 
COMPANY  v.   BUTLER. 

91  Indiana,  134. —  1883. 

Elliott,  J.  —  Under  the  general  internal  improvement  act  of 
1836,  the  State,  in  1837,  for  the  purposes  of  constructing  a  canal, 
seized  land  then  owned  by  the  heirs  of  Charles  Collett.  During 
that  year,  and  prior  to  1842,  work  was  done  upon  the  canal  by  the 
State;  at  the  session  of  the  Legislature  of  the  year  1842,  a  corpora- 
tion was  created  named  White  Water  Valley  Canal  Company,  and 
all  the  right  and  title  of  the  State  to  the  land  seized  was  vested  in 
that  corporation;    the   canal    was   afterwards   completed    and    was 


142      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

operated  by  the  grantee  of  the  State  until  the  year  1865;  in  Decem- 
ber of  that  year  the  canal  company  conveyed  its  estate  in  the  canal 
and  appurtenances,  reserving,  however,  all  water  power  and  all 
water  rights  owned  by  itself  or  its  lessees;  the  grantee  of  the  canal 
company  leased  to  the  appellant  all  the  unoccupied  water  on  that 
part  of  the  canal  which  is  upon  the  land  once  owned  by  the  Collett 
heirs;  on  that  land  there  was  a  low  piece  of  ground  through  which 
the  canal  passed;  upon  this  low  piece,  and  immediately  adjoining 
the  bank  of  the  canal,  is  a  large  pond  formed  by  the  water  thrown 
from  the  channel  of  the  canal;  on  this  pond  ice  formed  in  the 
winter  of  1878  and  1879,  and  was  cut  and  appropriated  by  the  appel- 
lees, who  were  the  defendants  below. 

It  is  within  the  power  of  the  Legislature  to  authorize  the  seizure 
of  the  fee,  when  that  estate  is  required  for  the  public  purpose. 
When  the  fee  is  taken,  the  owner  must  be  awarded,  as  compensa- 
tion, the  value  of  that  estate.  Our  cases  declare  that  the  act  of 
1836  authorized  the  seizure  of  the  fee,  and  that  this  was  the  estate 
taken  by  the  State  and  transmitted  to  the  grantees.  City  of  Logans- 
port  v.  Shirk,  88  Ind.  563;  Cromie  v.  Board,  etc.,  71  Ind.  208;  Nelson 
v.  Fleming,  56  Ind.  310;  Water  Works  Co.  v.  Burkhart,  41  Ind.  364. 
It  is  not  without  reluctance  that  we  yield  to  the  rule  declared  in 
these  cases,  but  we  feel  that  it  has  become  a  rule  of  property  which 
we  should  not  change.     *     *     * 

The  title  which  the  appellant  acquired  was  to  the  canal  and  its 
appurtenances.  Sheets  v.  Selden,  2  Wal.  177.  If  the  land  on  which 
the  ice  formed  can  be  deemed  an  appurtenance,  then  the  State 
acquired  and  transmitted  it  to  her  grantee.  But  land  can  never  be 
appurtenant  to  land.  This  old  rule,  old  as  the  law  itself,  forbids 
the  conclusion  that  the  land  passed  as  an  appurtenance. 

The  right  to  flow  lands  conveys  no  right  to  the  land  itself;  it 
vests  a  mere  easement  in  the  possessor.  The  right  which  the  canal 
company  had  in  the  land  adjoining  the  channel  of  the  canal  was  an 
easement,  and  nothing  more.  The  pond  which  formed  is  not  shown 
to  have  been  a  reservoir  or  basin  of  the  canal,  nor  to  have  consti- 
tuted any  part  of  the  channel.  All  that  can  be  inferred  from  the 
use  of  the  low  ground  by  the  appellant  and  its  grantors  is  that  there 
ted  a  right  to  overflow  it.  A  prescriptive  right  can  never  be 
broader  than  the  claim  evidenced  by  user.  Phear,  Rights  of 
Water,  90. 

The  appellant  owns  an  easement  vesting  in  it  a  right  to  do  what- 
the  owner  of  an  easement  to  overflow  another's  land  may  right- 
fully do;  1  In-  owners  of  the  fee  possess  the  right  to  do  all  acts  which 
a  landowner  may  lawfully  do,  not  inconsistent  with,  or  injurious  to, 


III.   i.]  ICE   OVER   LANDS   OF    PRIVATE    OWNERS.  1 43 

the  easement.  The  former  as  owner  of  the  dominant  estate  has  all 
the  rights  that  such  an  estate  confers;  the  latter  all  the  rights  of  a 
owner  of  land  burdened  with  an  easement. 

We  come  to  the  decisive  question:  Is  the  owner  of  an  easement 
to  flow  another's  land  entitled  to  the  ice  which  forms  on  the  water 
covering  the  land?  There  is  some  diversity  of  opinion  upon  this 
question,  but  our  decisions  declare  that  the  ice  belongs  to  the  owner 
of  the  servient  estate.  In  State  v.  Pottmyer,  1$  Ind.  402,  5  Am.  R. 
224,  the  question  was  examined  thoroughly,  and  it  was  held  that  the 
landowner  might  cut  the  ice,  provided  no  injury  was  done  to 
the  rights  of  the  owner  of  the  dominant  estate;  and  this  was  the 
decision  in  Edgerton  v.  Huff,  26  Ind.  35.  This  last  case  has,  it  is 
true,  been  overruled  upon  one  point,  but  not  upon  the  point  to 
which  it  is  here  cited.  Again,  in  Julien  v.  IVoodsmall,  82  Ind.  568, 
this  question  came  before  the  court,  and  it  was  held  that  the  right 
to  overflow  the  land  of  another  for  mill  purposes  did  not  confer  the 
right  to  cut  the  ice  formed  on  the  pond.  The  doctrine  of  these 
cases  is  consistent  with  long-established  principles,  and  is  supported 
by  analogous  cases.  The  owner  of  a  servient  estate  has  a  right  to 
all  the  profits  which  may  arise  from  the  soil,  and  may  make  such  a 
use  of  the  soil  as  is  not  inconsistent  with  the  easement.  In  the  old 
case  of  Goodtitle  v.  Alker,  1  Burr.  133,  it  is  said  that  "  The  owner  of 
the  soil  has  a  right  to  all  above  and  under  ground,  except  only  the 
right  of  passage,  for  the  king  and  his  people."  This  general  doctrine 
applies  to  a  private  way.  Gates  may  be  erected  across  it,  wells  may 
be  dug  on  it,  waterways  may  be  constructed  under  it,  seaweed  may 
be  gathered  off  of  it,  and  herbage  may  be  cropped  from  it.  Bean 
v.  Coleman,  44  N.  H.  539;  O' Linda  v.  Lotkrop,  21  Pick.  292;  Baker 
v.  Frick,  45  Md.  337,  24  Am.  R.  506;  Emans  v.  Turnbull,  3  Am. 
Dec.  427,  n.  An  admirable  statement  of  the  rule  is  that  of  the  court 
in  Maxwell  v.  McAtee,  9  B.  Mon.  20.  There,  in  speaking  of  the 
grant  of  an  easement,  it  was  said:  "  Notwithstanding  such  a  grant, 
there  remains  with  the  grantor  the  right  of  full  dominion  and  use  of 
the  land,  except  so  far  as  a  limitation  of  his  right  is  essential  to  the 
fair  enjoyment  of  the  right  of  way  which  he  has  granted.  It  is  not 
necessary  that  the  grantor  should  expressly  reserve  any  right  which 
he  may  exercise  consistently  with  a  fair  enjoyment  of  the  grant. 
Such  rights  remain  with  him  because  they  are  not  granted.  And 
for  the  same  reason  the  exercise  of  any  of  them  cannot  be  com- 
plained of  by  the  grantee,  who  can  claim  no  other  limitation  upon 
the  rights  of  the  grantor,  but  such  as  are  expressed  in  the  grant,  or 
necessarily  implied  in  the  right  of  reasonable  enjoyment."  The 
right  of  a  mill-owner  to  pond  water  on  another's  land,  the  right  of 


144      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.   CH.  II. 

one  owner  to  use  another's  land  for  a  sluice-way,  the  right  of  one 
owner  to  use  another's  land  for  drainage  purposes,  are  all  easements, 
and  nothing  more.  Baer  v.  Martin,  8  Blackf.  317;  Snowden  v. 
Wilas,  19  Ind.  10.  Easements  do  not  take  from  the  owner  of  the 
fee  the  right  to  make  any  profitable  use  he  can  of  his  property  not 
inconsistent  with  the  enjoyment  of  the  dominant  estate.  It  is 
immaterial  whether  the  easement  is  to  flow  water  over  the  land  or  to 
pond  it  on  the  land;  in  either  case,  as  said  in  Mason  v.  Hill,  5  B.  & 
Ad.  1,  the  owner  of  the  fee  may  use  it  for  "  profitable  purposes." 
Such  a  right  is  said  to  be  "a  privilege  without  profit."  Earl  v.  De 
Hart,  1  Beasley,  280.  The  right  to  back  or  pond  water  on  the  land 
of  another,  whether  acquired  under  the  statute  or  by  prescription, 
gives  no  right  to  the  land  itself,  nor  to  the  profits  which  a  use  of  it, 
not  injurious  to  the  easement,  will  produce.  Williams  v.  Nelson,  23 
Pick.  141;  Paine  v.  Woods,  10S  Mass.  160;  Storm  v.  Manchaug  Co., 
13  Allen,  10.  The  close  analogy  between  the  class  of  cases  to  which 
we  have  referred  and  those  of  State  v.  Pottmeyer,  supra,  and  Edgerton 
v.  Huff,  supra,  is  very  readily  perceived,  and  is  strong  proof  that  the 
latter  cases  are  founded  on  solid  principle,  for  no  one  doubts  that 
the  former  are  well  grounded  in  principle. 

There  are  well  considered  cases  directly  sustaining  the  view 
adopted  by  our  decisions.  In  Dodge  v.  Berry,  26  Hun,  246,  it  was 
held  that  a  mill-owner  who  has  the  right  to  flow  the  lands  of  another, 
does  not  own  the  ice  which  forms  over  the  lands  of  such  person,  and 
that  the  latter  may  take  the  ice  unless  he  perceptibly  injures  the 
owner  of  the  mill.  The  same  conclusion  was  reached  in  Marshall 
v.  Peters,  12  How.  Pr.  218.  The  court,  in  Washington  Ice  Co.  v. 
Shortall,  101  111.  46,  40  Am.  R.  196,  held  that  ice  belonged  to  the 
owner  of  the  fee,  and,  in  the  course  of  the  opinion,  said:  '  The 
views  we  hold  are  in  accordance  with  the  holding  in  The  State  v. 
Pottmeyer,  $1  Ind.  4°2>  tnat  when  the  water  of  a  flowing  stream  run- 
ning in  its  natural  channel  is  congealed,  the  ice  attached  to  the  soil 
constitutes  a  part  of  the  land,  and  belongs  to  the  owner  of  the  bed 
of  the  stream,  and  he  has  the  right  to  prevent  its  removal."  This 
doctrine  is  again  held  in  Village  of  Brooklyn  v.  Smith,  104  111.  429, 
44  Am.  R.  90. 

In  Paine  v.  Woods,  108  Mass.  160,  the  courts  thus  stated  the  law 
upon  this  subject:  "  The  owner  of  the  land  thereby  flowed  must 
not,  indeed,  draw  off  by  canals,  aqueducts  or  ditches,  the  water 
which  has  been  raised  by  the  dam.  Cook  v.  Hull,  3  Pick.  269; 
Storm  v.  Manchaug  Co.,  13  Allen,  10.  But  he  may  use  it  for  water- 
ing his  cattle,  or  irrigating  his  crops  and  gardens,  or  any  other 
reasonable   purpose   which   docs  not  practically  and   in  a  perceptible 


III.   I.]  ICE   OVER    LANDS    OF   PRIVATE   OWNERS.  I45 

and  substantial  degree  impair  the  right  to  run  the  mill;  and  so  he 
may  take  and  carry  away  the  water  when  formed  into  ice,  for  use  or 
sale,  provided  he  does  not  thereby  appreciably  diminish  the  head  of 
water  at  the  dam  of  the  mill-owner.  Cummings  v.  Barrett,  10  Cush. 
186.  And  his  land  may  be  of  peculiar  value  by  reason  of  its  situation 
affording  opportunities  to  do  this.  Ham  v.  Salem,  100  Mass.  350." 
These  cases  lend  strong  support  to  the  doctrine  which  prevails  in 
this  court,  and,  with  the  exception  of  the  case  of  Mill  River,  etc.  Co. 
v.  Smith,  34  Conn,  462,  and  Myer  v.  Whitaker,  5  Abbott,  N.  C.  172, 
we  have  found  none  asserting  a  contrary  doctrine.  Of  the  latter  case 
we  need  only  say  it  is  confessedly  against  the  weight  of  authority, 
is  condemned  by  the  courts  of  the  same  State,  is  the  decision  of  a 
single  judge,  and  is  not  well  reasoned.  The  decision  in  the  first  of 
these  cases  is  that  of  a  divided  court,  and  the  reasoning  upon  which 
it  is  founded  is  unsatisfactory.  It  proceeds  thus:  "  Many  of  the 
mill  ponds  of  the  State,  used  in  the  grinding  of  grain  and  sawing  of 
timber,  are  small  and  shallow,  and  often  in  the  winter  season,  when 
rain  falls  infrequently  and  the  fountains  are  frozen,  water  is  scarce, 
and  anything  which  further  lessens  it  is  a  material  injury."  This 
seems  to  us  a  narrow  view  and  one  not  in  harmony  with  authority 
or  consistent  with  sound  principle.  It  may  possibly  be  that  if  the 
evidence  in  a  particular  case  should  show  a  diminution  of  the  supply 
of  water,  the  landowner  might  then  be  prevented  from  taking  ice; 
this,  however,  affords  no  ground  for  a  broad  general  rule;  the 
court  has  as  little  ground  for  presuming  that  taking  the  ice  would 
diminish  the  supply  of  water,  as  for  presuming  that  allowing  a  dozen, 
or  a  half  dozen  horses  to  drink  from  the  pond  would  appreciably 
injure  the  owner  of  the  easement.  It  is  difficult,  if  not  impossible, 
to  reconcile  the  ruling  in  that  case  with  the  decision  in  the  subse- 
quent case  of  Seeley  v.  Brush,  35  Conn.  419;  but,  however  this  may 
be,  we  are  clear  that  it  is  not  a  case  which  should  be  regarded  as 
authority.  It  is  a  mistake  to  suppose  that  the  case  of  Higgins  v. 
Kusterer,  41  Mich.  318;  s.  c,  32  Am.  R.  160,  is  against  the  views  of 
this  court,  for  nothing  more  is  there  decided  than  that  parties  may, 
by  express  contract,  treat  ice  as  personal  property.  It  is  said  in 
that  case  that  "  there  can  be  no  doubt  that  the  original  title  to  the 
ice  must  be  in  the  possessor  of  the  water  where  it  is  formed;  "  and 
this  is  in  harmony  with  our  cases.  In  a  later  case  in  the  same  court, 
it  was  held  that  a  riparian  proprietor  had  a  right  to  gather  ice  on  a 
navigable  river,  and  that  the  owners  of  a  boat  which  carelessly 
destroyed  it  were  liable.  People '  s  Ice  Co.  v.  Steamer  "Excelsior,"  44 
Mich.  229;  s.  c,  38  Am.  R.  246.  The  right  of  the  riparian  proprietor 
was  likened  to  that  of  the  owner  of  land  adjoining  a  public  road  or 

LAW   OF   PROP.   IN   LAND  —  10 


I46      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

street,  and  upon  this  basis  was  grounded  his  right  to  recover.  This 
is  the  real  foundation  of  our  own  cases,  and  they  are,  therefore, 
supported,  indirectly,  at  least,  by  the  one  just  cited.  The  case  of 
Wood  v.  J^ow/er,  26  Kan.  682;  s.  c,  40  Am.  R.  330,  decides  that 
where  the  stream  is  a  navigable  one,  and  the  adjoining  proprietor 
owns  only  to  the  bank,  he  has  no  superior  claim  to  the  ice;  but  the 
court  refers  with  approval  to  the  cases  which  hold  that  where  the 
riparian  proprietor  owns  the  land  he  also  owns  the  ice. 

Our  conclusion  is,  that  where  the  user  is  of  such  a  character  as  to 
establish  an  easement  to  pond  water  on  the  land,  or  to  use  it  as  a 
water  way  for  surplus  water,  the  right  to  gather  ice  which  forms  on 
the  pond  is  in  the  owner  of  the  fee,  and  not  in  the  owner  of  the 
dominant  estate. 

Judgment  affirmed. 


2.   Ice  on  Public  Waters. 

WOOD  v.  FOWLER. 

26  Kansas,  682.  —  1882. 

Brewer,  J.  —  This  is  a  petition  for  an  injunction.  A  demurrer 
thereto  was  sustained  in  the  District  Court,  and  the  plaintiffs  bring 
the  case  here  for  review.  The  petition  alleges  substantially  that  on 
the  20th  of  January,  1880,  one  Matthias  Splitlog  was  the  owner  and 
had  the  exclusive  possession  of  a  tract  of  land  in  the  neighborhood 
of  Kansas  City  and  Wyandotte,  and  bordering  on  the  Kansas  river, 
and  extending  to  the  middle  of  the  channel;  that  he  then  leased  said 
tract  to  these  plaintiffs  for  ten  years,  and  placed  them  in  the  same 
exclusive  possession;  that  these  plaintiffs  are  ice  dealers,  engaged 
in  gathering  ice,  and  that  they  have  erected  ice-houses  on  the 
banks  of  the  Kansas  river  and  in  close  proximity  to  this  tract  of 
land,  for  the  storage  and  preservation  of  ice  in  great  quantities;  that 
merchantable  ice  is  a  commodity  of  great  value,  and  the  value 
thereof  greatly  enhanced,  as  it  can  be  gathered  in  close  proximity 
to  the  market;  that  the  cities  of  Kansas  City  and  Wyandotte  furnish 
a  good  market  for  the  sale  of  ice  to  consumers,  as  well  as  for  export 
trade;  and  that  merchantable  ice  of  superior  quality  formed  upon 
tin  surface  of  said  Kansas  river  within  the  limits  of  said  premises, 
which  adhered  to  the  banks  of  the  stream  and  extended  therefrom 
to  the  center  of  the  channel.  The  petition  contained  further  allega- 
tions  that  the  di  fen  lants  were  entering  the  premises  and  removing 
the  i'  e,  and  other  fat  is  showing  that  the  plaintiffs  were  entitled  to 


III.   2.]  ICE   ON    PUBLIC   WATERS.  147 

an  injunction  if  they  were  the  owners  of  the  ice,  or  if  they  had  such 
an  interest  therein  that  they  could  prevent  any  removal  of  it. 

The  question,  then,  is  fairly  presented  as  to  the  extent  of  the 
interest  which  a  riparian  owner  has  in  the  ice  formed  adjacent  to  his 
property.  The  petition  alleges  ownership  and  possession  to  the 
center  of  the  channel;  but  the  defendants  insist  that  this  allegation 
must  be  disregarded,  because  the  Kansas  is  a  navigable  stream,  and 
that  the  owner  of  the  adjacent  soil  in  such  case  only  owns  to  the 
bank,  and  not  to  the  center  of  the  stream;  that  this  court  is  bound 
to  take  judicial  notice  of  such  fact  —  the  official  records  of  United 
States  surveys  showing  that  the  stream  was  meandered,  and  its  navi- 
gability being  also  indicated  by  early  Kansas  legislation  and  its  actual 
navigation  a  fact  of  early  Kansas  history.  We  think  the  claim  of 
the  defendants  is  correct  — that  the  court  is  bound  to  take  judicial 
notice  of  the  navigability  of  the  stream.     *     *     * 

It  is  true,  in  1864  (Laws  1864,  p.  180),  an  act  was  passed  by  the 
State  Legislature  declaring  the  Kansas  and  certain  other  rivers  not 
navigable;  but  the  plain  implication  of  the  act  is  that  the  streams 
had  theretofore  been  considered  navigable,  and  its  purpose  was  to 
sanction  the  bridging  and  damming  of  such  streams.  It  certainly 
was  not  the  purpose  and  the  act  had  not  the  effect,  to  enlarge  the 
title  of  the  riparian  owners,  or  to  recognize  them  as  possessed  of 
higher  rights  than  heretofore.  Indeed,  where  title  is  once  vested, 
a  mere  change  in  the  condition  or  character  of  the  current  or  the 
uses  to  which  the  stream  is  put,  will  not  transfer  any  title.  People 
v.  Tibbets,  19  N.  Y.  527;  Wheeler  v.  Spinola,  54  N.  Y.  377.  It  was 
an  assertion  of  State  control  over  a  stream  wholly  within  its  terri- 
torial limits;  a  control  which,  notwithstanding  the  general  supremacy 
of  the  federal  government  over  navigable  streams,  was  asserted  to 
exist  in  the  State  in  the  case  of  Naederhauser  v.  The  State,  28  Ind. 
supra,  as  well  as  in  many  other  authorities.  So  that  for  all  t'ie  pur- 
poses of  this  case,  and  any  question  in  it,  we  may  assume  that  the 
Kansas  is,  at  the  point  in  controversy,  a  navigable  stream.  The 
stream  having  been  meandered,  the  lines  of  the  surveys  are  bounded 
by  the  bank;  the  patents  from  the  United  States  passed  title  only 
to  the  bank;  Splitlog,  as  riparian  owner,  owned  only  to  the  bank. 
The  title  to  the  bed  of  the  stream  is  in  the  State.  Stevens  v.  Rid. 
Co.,  34  N.  J.  Law,  532;  Pollard's  Lessee  v.  Hagan,  3  How.  U.  S.  212. 
It  is  true  a  distinction  was  recognized  in  England,  and  that  streams 
were  considered  navigable  only  in  so  far  as  they  partook  of  the  sea, 
and  to  the  extent  that  their  waters  were  affected  by  the  ebb  and  flow 
of  the  tide,  and  only  so  far  was  the  title  of  the  riparian  owner  limited 
to  the  bank;  above  such  point,  even  although  the  stream  was  large 


I4§      CONSTITUENTS    AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

enough  to  be  used,  and  in  fact  was  used,  for  purposes  of  navigation, 
the  riparian  owner  owned  the  soil  ad  medium  filum  aquce.  So  that 
really  three  distinct  characters  of  streams  were  recognized:  First, 
those  smaller  streams,  which  could  not  be  used  for  any  purpose  of 
navigation,  in  which  the  title  to  the  soil  was  in  the  riparian  owner, 
and  along  which  the  public  had  no  rights  of  highway  or  otherwise; 
an  intermediate  class,  in  which  the  riparian  owner  owned  to  the 
middle  of  the  channel,  but  along  whose  stream  the  public  had  all  the 
rights  of  a  highway;  and  third,  that  which  was  called  technically 
the  navigable  streams,  where  the  title  to  the  bed  of  the  stream  was 
in  the  sovereign,  and  all  rights  were  in  the  public.  The  same  doc- 
trine of  riparian  ownership  to  the  center  of  the  stream  in  all  rivers 
unaffected  by  the  ebb  and  flow  of  the  tide,  is  recognized  in  some 
States  of  the  Union;  but  the  better  and  more  generally  accepted 
rule  in  this  country  is,  to  apply  the  term  "  navigable  "  to  all  the 
streams  which  are  in  fact  navigable;  and  in  such  case  to  limit  the 
title  of  the  riparian  owner  to  the  bank  of  the  stream.  Especially 
is  this  true  in  the  States  where  the  lands  have  been  surveyed  and 
patented  under  the  federal  law.  See  the  following  authorities. 
Rid.  Co.  v.  Schurmeir,  7  Wall.  272;  McManus  v.  Carmichael,  3  Iowa, 
1;  Haight  v.  Keokuk,  4  Iowa,  199;  Tombden  v.  Rid.  Co.,  32  Iowa, 
106;  Flannigan  v.  City  of  Philadelphia,  42  Pa.  St.  219;  Bridge  Co.  v. 
Kirk,  46  Pa.  St.  112;  People  v.  Tibbets,  19  N.  Y.  523;  People  v. 
Loomis,  33  N.  Y.  461.  These  conclusions  seem  to  compel  an  affirm- 
ance of  the  judgment  of  the  District  Court;  for  whatever  might  be 
the  case  where  a  riparian  owner  owns  to  the  center  of  the  channel, 
and  whatever  ownership  and  control  he  may  have  over  the  ice  which 
forms  upon  the  stream  upon  his  premises,  (and  as  to  the  extent  of 
his  rights,  see  the  following  authorities:  State  v.  Pottmeyer,  $$  Ind. 
402,  also  reported  in  5  American  Reporter,  224;  Mill  River  Co.  v. 
Smith,  34  Conn.  462;  Marshall  v.  Peters,  12  How.  Pr.  218;  Meyer 
v.  Whittaker,  18  Alb.  L.  J.  128;  4  Cent.  L.  J.  500;  7  Cent.  L.  J. 
141;  //iggius  v.  Kusterer,  41  Mich.  318,  reported  in  9  Cent.  L.  J. 
247;  People's  Ice  Co.  v.  The  Excelsior,  11  Cent.  L.  J.  347;  Paine  v. 
Wood,  108  Mass.  173;  Gage  v.  Stumphaus,  Sup.  Ct.  Mass.  reported 
in  24  Alb.  L.  J.  516;  Washington  fee  Co.  v.  Short  all,  111.  Sup.  Ct.  13 
Rep.  9),  it  would  seem  that  where  there  is  no  ownership  of  the  sub- 
jacent soil,  a  riparian  proprietor  has  no  title  to  the  ice.  The  title 
to  the  soil  being  in  the  State,  and  the  stream  being  a  public  high- 
way, obviously  the  ownership  of  the  ice  would  rest  in  the  general 
public,  or  in  the  State  as  the  representative  of  that  public.  The 
riparian  proprietor  would  have  no  more  title  to  the  ice  than  he  would 
to   tin-    fish.      It   simply    is   this,  that   his   land   joins  t  he  land  of  the 


III.  3.]  SALE   OF   ICE.  I49 

State.  The  fact  that  it  so  joins,  gives  him  no  title  to  that  land,  or 
to  anything  formed  or  grown  upon  it,  any  more  than  it  does  to  any- 
thing formed  or  grown  or  found  upon  the  land  of  any  individual 
neighbor.  Undoubtedly,  in  view  of  the  importance  that  ice  is 
rapidly  assuming  as  a  merchantable  commodity,  it  would  be  wise  for 
the  State  to  legislate  in  reference  to  the  ice.  product  of  the  navigable 
streams;  but  until  such  legislation  is  had,  it  would  seem  that  the 
one  who  first  appropriates  and  secures  the  ice  which  is  formed  is 
entitled  to  it,  and  on  the  same  principle  that  he  who  catches  a  fish 
in  one  of  those  rivers  owns  it.  Hickey  v.  Hazard,  3  Mo.  App.  480; 
Gage  v.  Steinkrans  and   Rowell  v.   Doyle,  Mass.   Sup.  Ct.  25    Alb.  L. 

J-  23. 

There  being  no  other  questions  in  the  case,  the  judgment  of  the 
District  Court  will  be  affirmed. 


3.   Sale  of  Ice. 

HIGGINS  v.  KUSTERER. 

41  Michigan,  318.  —  1879. 

Campbell,  C.  J. — Higgins  recovered  below  a  judgment  against 
Kusterer  for  the  value  of  a  quantity  of  ice.  Kusterer  claims  that 
title  never  passed  to  Higgins,  and  that  the  property  was  lawfully 
acquired  by  himself  from  one  Loder,  who  cut  it  on  a  pond  belonging 
to  one  Coats  and  sold  it  to  defendant. 

The  facts  are  briefly  these:  The  ice  in  question  was  formed  upon 
water  which  had  spread  over  a  spot  of  low  ground  partly  belonging 
to  Hendrick  Coats,  forming  a  basin,  the  land  being  dry  in  summer, 
and  the  rest  of  the  year  overflowed  from  a  small  brook  leading  into 
it.  After  the  ice  formed,  and  in  February,  1878,  Coats,  by  a  parol 
bargain,  sold  all  the  ice  in  his  part  of  the  basin  to  Higgins,  for  fifty 
cents.  The  parties  at  the  time  stood  near  by  in  view  of  the  ice,  and 
the  quantity  sold  was  pointed  out,  and  the  money  paid.  The  ice 
was  then  all  uncut. 

About  two  weeks  thereafter  John  Loder,  knowing  that  Higgins 
had  purchased  and  claimed  the  ice,  and  having  been  warned  thereof 
by  Coats,  offered  Coats  five  dollars  for  the  ice,  which  Coates  accepted, 
and  Loder  cut  it,  and  sold  it  to  Kusterer  who  had  made  a  previous 
verbal  contract  with  Loder  for  it.  Higgins  was  present  when  the 
ice  was  loaded  on  Kusterer's  sleigh  and  forbade  the  loading  and 
removal  on  the  ground  that  he  had  purchased  it  from  Coats.  Kus- 
terer referred  the  matter  to  Coats  who  said  he  had  sold  it  to  Loder. 


150      CONSTITUENTS   AND    INCIDENTS    OF    LAND.       [PT.  II.   CH.  II. 

The  only  question  presented  is  whether  Higgins  was  owner  of 
the  ice. 

The  case  was  argued  very  ably  and  very  fully,  and  the  whole  sub- 
ject of  the  nature  of  ice  as  property  was  discussed  in  all  its  bearings. 
We  do  not,  however,  propose  to  consider  any  question  not  arising 
in  the  case. 

The  record  is  free  from  any  complications  which  might  arise  under 
other  circumstances.  There  are  no  conflicting  purchasers  in  good 
faith  without  notice.  Loder  and  Kusterer  had  full  notice  of  the 
claims  of  Higgins  before  they  expended  any  money.  The  sale  to 
Higgins  was  not  a  sale  of  such  ice  as  might,  from  time  to  time,  be 
formed  on  the  pond,  but  of  ice  which  was  there  already,  and  which, 
if  not  cut,  would  dissapear  with  the  coming  of  mild  weather  and 
have  no  further  existence.  It  was  not  like  crops  or  fruit  connected 
with  the  soil  by  roots  or  trees  through  which  thsy  gained  nourishment 
before  maturity.  It  was  only  the  product  of  running  water,  a 
portion  of  which  became  fixed  by  freezing,  and  if  not  removed  in 
that  condition  would  lose  its  identity  by  melting.  In  its  frozen  con- 
dition it  drew  nothing  from  the  land,  and  got  no  more  support  from 
it  than  a  log  floating  on  the  water  would  have  had. 

Its  only  value  consisted  in  its  disposable  quality  as  capable  of 
removal  from  the  water  while  solid,  and  of  storage  where  it  might 
be  kept  in  its  solid  state,  which  could  not  be  preserved  without  such 
removal.     If  left  where  it  was  formed  it  would  disappear  entirely. 

While  we  think  there  can  be  no  doubt  that  the  original  title  to  ice 
must  be  in  the  possessor  of  the  water  where  it  is  formed,  and  while 
it  would  pass  with  that  possession,  yet,  it  seems  absurd  to  hold  that 
a  product  which  can  have  no  use  or  value  except  as  it  is  taken  away 
from  the  water,  and  which  may  at  any  time  be  removed  from  the 
freehold  by  the  moving  of  the  water,  or  lose  existence  entirely  by 
melting,  should  be  classed  as  realty  instead  of  personalty,  when  the 
owner  of  the  freehold  chooses  to  sell  it  by  itself.  When  once  sev- 
ered no  skill  can  join  it  again  to  the  realty.  It  has  no  more  organic 
connection  with  the  estate  than  anything  else  has  that  floats  upon  the 
water.  Any  breakage  may  sweep  it  down  the  stream  and  thus  cut 
off  the  property  of  the  freeholder.  It  has  less  permanence  than  any 
crop  that  is  raised  upon  the  land,  and  its  detention  in  any  particular 
spot  is  liable  to  be  broken  by  many  accidents.  It  must  be  gathered 
while  fixed  in  place  or  not  at  all,  and  can  only  be  kept  in  existence 
by  cold  weather.  In  the  present  case,  the  peculiar  situation  of  the 
pond  rendered  it  likely  that  the  ice  could  not  float  away  until  nearly 
destroyed,  but  it  could  not  be  preserved  from  the  other  risks  and 
incidents  of  its  precarious  existence.     Any  storm  or  shock  might  in 


IV.   I.]  FRUCTUS   NATURALES:    TREES.  151 

a  moment  convert  it   into   floating  masses   wnich   no  ingenuity  of 
black-letter  metaphysics  could  annex  to  the  freehold. 

It  does  not  seem  to  us  that  it  would  be  profitable  to  attempt  to 
determine  such  a  case  as  the  present  by  applying  the  inconsistent 
and  sometimes  almost  whimsical  rules  that  have  been  devised  con- 
cerning the  legal  character  of  crops  and  emblements.  Ice  has  not 
been  much  dealt  with  as  property  until  very  modern  times,  and  no 
settled  body  of  legal  rules  has  been  agreed  upon  concerning  it.  So 
far  as  the  principles  of  the  common  law  go,  they  usually,  if  not  uni- 
versally, treated  nothing  movable  as  realty  unless  either  permanent!}- 
or  organically  connected  with  the  land.  The  tendency  of  modern 
authority,  especially  in  regard  to  fixtures,  has  been  to  treat  such 
property  according  to  its  purposes  and  uses  as  far  as  possible. 

The  ephemeral  character  of  ice  renders  it  incapable  of  any  per- 
manent or  beneficial  use  as  part  of  the  soil,  and  it  is  only  valuable 
when  removed  from  its  original  place.  Its  connection, — if  its 
position  in  the  water  can  be  called  a  connection,  —  is  neither  organic 
nor  lasting.  Its  removal  or  disappearance  can  take  nothing  from 
the  land.  It  can  only  be  used  and  sold  as  personalty,  and  its  only  use 
tends  to  its  immediate  destruction.  We  think  that  it  should  be 
dealt  with  in  law  according  to  its  uses  in  fact,  and  that  any  sale  of 
ice  ready  formed,  as  a  distinct  commodity,  should  be  held  a  sale  of 
personalty,  whether  in  the  water  or  out  of  the  water. 

We  shall  not  attempt  to  discuss  cases  where  the  bargain  includes 

future  uses  of  land  and  water,  and   interests  in  ice  not  yet  frozen. 

Whether  such  dealings  are  to  be  regarded  as  leases  or  licenses,  or 

executory  sales,  may  be  properly  discussed   when   they  occur.     We 

think  the  sale  in  the  present  case  was  rightfully  held  to  be  a  sale  of 

personalty. 

The  judgment  must  be  affirmed,  with  costs. 


IV.  Vegetable  products  of  the  soil. 

1.  Fructus  Naturales. 

a.   Classification  and  legal  charade?-  and  oivnership. 

(1)  Trees  and  Their  Fruit. 

SLOCUM  v.  SEYMOUR. 

36  New  Jersey  Law,  138.  —  1873. 

Bedle,  J.  —  Slocum  conveyed  to  Seymour  by  an  ordinary  deed  of 
conveyance,  dated   December   20,    i860,   all   the   wood   and   timber 


152      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

upon  a  certain  tract  of  land,  with  the  right,  in  the  vendee,  to  cut 
and  remove  the  same  before  July  i,  1862.  The  deed  described  the 
tract  by  metes  and  bounds,  and  as  the  same  premises  conveyed  to 
Slocum  by  Abram  W.  Haring  and  wife,  by  deed  of  even  date  with 
the  deed  to  Seymour.  The  title  of  Slocum  to  a  part  of  the  tract 
proved  defective,  and  this  suit  is  brought  upon  an  alleged  implied 
covenant  of  title  in  the  plaintiff's  (Seymour's)  deed.  There  is  no 
express  covenant  of  title,  but  there  is  a  covenant  against  the  acts 
of  the  grantor.  The  charge  was  based  upon  the  assumption  that 
the  parties  had  treated  this  as  a  sale  of  personal  property,  and  that 
a  warranty  of  title  would  be  implied  by  the  law.  Although  there  is 
great  diversity  in  the  case,  whether  a  sale  of  standing  timber  by  the 
owner  of  the  freehold  is  of  a  chattel  interest,  I  am  satisfied  that  such 
a  sale  is  of  an  interest  in  lands,  and  not  controlled  by  the  doctrine 
of  warranty  of  title  in  sales  of  personal  property.  In  no  sense  can 
trees,  the  natural  and  permanent  growth  of  the  soil,  be  regarded  as 
partaking  of  the  character  of  emblements,  or  fructus  industriales,  but 
are  a  part  of  the  inheritance,  and  can  only  become  personalty  by 
actual  severance,  or  by  a  severance  in  contemplation  of  law  as  the 
effect  of  a  proper  instrument  of  writing.  It  may  be  conceded,  and 
such  is  the  law,  as  in  the  case  of  Smith  v.  Surman,  9  B.  &  C.  561, 
that  there  may  be  a  valid  parol  contract  for  the  sale  of  timber  as  a 
chattel  where  it  is  to  be  cut  and  delivered  by  the  vendor,  although 
designated  as  being  upon  certain  land,  and  where  the  contract  con- 
templates no  property  to  the  vendee  in  the  trees  until  after  they  are 
actually  cut  down  and  reduced  to  chattels;  yet,  where  the  sale  is  of 
an  interest  in  the  trees  standing,  without  having  been  in  legal  effect 
severed  by  the  force  of  a  previous  written  instrument,  and  although 
the  American  cases  differ  upon  the  subject,  the  best  considered  of 
them,  and  those  which  I  think  declare  the  law,  hold  that  such  a  sale 
is  of  an  interest  in  land,  within  the  meaning  of  the  Statutes  of 
Frauds.  Green  v.  Armstrong,  1  Denio,  551;  Buck  v.  Pickwell,  27 
Vt.  158;  Putney  v.  Day,  6  N.  H.  430;  Olmsted  v.  Niles,  7  N.  H.  522. 
This  also  is  a  fair  result  of  the  English  cases,  although  to  some 
extent  conflicting.  The  only  adverse  ruling  in  point  in  England  is 
in  1  Lord  Raymond,  182,  where  it  is  stated  that  Treby,  C.  J., 
reported  to  the  other  justices  that  on  a  question  before  him  at  nisi 
prius,  whether  the  sale  of  timber  growing  ought  to  be  in  writing  by 
the  statute  of  frauds,  or  might  he  by  parol,  he  was  of  opinion,  and 
ruled  accordingly,  that  it  might  be  by  parol,  because  it  was  a  bare 
chattel.  The  report  also  states,  and  Powell,  J.,  agreed  to  this 
opinion,  but  whether  informally  or  in  banc,  it  is  difficult  to  tell  from 
the    report.      This   ruling   is   also   mentioned    in    Buller's  Nisi  Prius, 


IV.  i.J  FRUCTUS  NATURALES:  TREES.  1 53 

282,  as  per  Treby,  C.  J.  But  the  case  of  Scorell  v.  Boxall,  1  Younge 
&  Jervis,  395,  is  directly  to  the  contrary,  and  in  it  Hullock,  B  , 
regards  the  report  in  Lord  Raymond  as  a  dictum  merely  and  not  as 
an  authority.  That  report  is  undoubtedly  the  foundation  of  all  the 
American  cases  to  the  same  effect,  but  it  is  not  considered  as  the 
settled  law  in  England.  The  case  of  Scorell  v.  Boxall  was  this: 
The  plaintiff  had  purchased,  by  parol,  underwood  standing,  to  be  cut 
by  him,  and  brought  his  action  against  the  defendants  for  cutting 
and  carrying  it  away.  The  Court  of  Exchequer  held  that  the  plain- 
tiff's contract  was  a  mere  parol  contract  for  the  sale  of  growing 
underwood,  a  part  of  the  freehold,  and  in  direct  violation  of  the 
statute  of  frauds  —  that  it  was  the  sale  of  an  interest  in  land.  See 
also  the  case  of  Teal  v.  Auty,  2  B.  &  B.  99,  to  the  same  effect  as  to 
the  purchase  of  growing  poles. 

As  already  indicated,  trees  may  become  personalty  when  actually 
severed,  or  when  the  property  in  claim  has  become  distinct  from 
the  freehold  by  written  transfer.  There  may  also  be  valid  parol 
contracts  with  the  owner  of  the  soil,  with  reference  to  their  sale  and 
delivery  as  chattels  in  contemplation  of  severance,  where  no  interest 
in  the  trees  standing  is  intended  by  the  bargain,  the  same  as  con- 
tracts for  the  sale  of  lumber  to  be  cut,  sawed  and  delivered  as  such; 
but  when  the  contract  comprehends  an  interest  in  the  trees  standing, 
with  a  right  in  the  vendee  to  sever  them,  the  subject-matter  is  then 
an  interest  in  land  within  the  statute  of  frauds.  Such  was  clearly 
the  character  of  the  contract  between  these  parties,  as  the  deed 
shows  an  intention  to  convey,  and  does  convey,  an  interest  in  the 
wood  and  timber  standing,  when  a  part  of  the  freehold,  in  the  hands 
of  the  vendor.  The  deed  secures  to  Seymour  an  actual  property  in 
the  trees  as  a  part  of  the  land,  and  not  merely  a  right  of  action 
under  a  contract  of  purchase  of  personal  property. 

The  bargain  having  been  consummated  in  this  case  by  the  delivery 
and  acceptance  of  a  deed  of  conveyance,  the  doctrine  of  caveat 
emptor  must  apply  in  the  absence  of  fraud,  unless  the  purchaser  has 
protected  himself  by  a  covenant  of  warranty  of  title  in  the  deed. 
Phillips  v.  City  of  Hoboken,  2  Vroom.  143;  4  Kent,  471,  note. 

In  this  deed  there  is  no  such  covenant,  and  the  law  will  not  imply 
one.  For  these  reasons  the  action  was  not  maintainable,  and  the 
judgment  must  be  reversed. 


154      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

SKINNER  v.  WILDER. 
38  Vermont,  115.  —  1865. 

Peck,  J.  —  In  this  case  it  appears  that  the  plaintiff  planted  or  set 
apple  trees  on  his  own  land  six  feet  from  the  division  line  between 
his  land  and  the  defendant's  land;  the  trees  grew  until  the  roots 
extended  into,  and  the  branches  overhung,  the  defendant's  land. 
The  question  is  whether  the  defendant  is  liable  either  in  trespass  on 
the  freehold  or  in  trover  for  picking,  carrying  away  and  converting  to 
his  own  use,  the  apples  growing  on  the  branches  overhanging  his 
own  land. 

Each  party  claims  to  be  the  sole  owner  of  the  fruit  in  question; 
the  plaintiff  upon  the  ground  that  he  is  the  owner  of  the  tree,  and 
the  defendant  upon  the  ground  that  the  branches  and  the  fruit 
thereon  overhung  his  land,  and  that  in  virtue  of  his  ownership  of 
his  land  he  owns  everything  above  it.  It  is  true  that  whoever  owns 
land  owns  above  it  to  an  indefinite  height,  —  that  is,  he  owns  the 
space  above,  or  rather,  has  the  right  to  appropriate  it  to  his  use,  so 
that  no  one  can  lawfully  obstruct  it  to  his  prejudice.  But  it  is  not 
true  in  all  cases  that  the  owner  of  land  owns  everything  upon  or 
above  it,  though  placed  there  wrongfully  by  another.  Certainly  in 
case  one's  personal  property  is  wrongfully  placed  upon  the  land  of 
another  the  property  in  the  thing  is  not  thereby  changed.  The 
owner  of  the  soil  has  his  remedy  by  action  for  damages,  and  he  may 
remove  it;  but  he  does  not  become  the  owner.  If  a  man  build  a 
house  on  his  own  land  with  the  eaves  and  windows  above  the  surface 
of  the  ground  projecting  over  the  land  of  the  adjoining  proprietor, 
he  is  liable  to  an  action  for  damages,  and  generally,  at  least  under 
some  circumstances,  the  adjoining  proprietor  may  remove  the 
obstruction  as  a  nuisance;  but  the  material  removed  does  not 
become  his  property.  In  order  to  justify  the  act  of  removal  in  such 
case,  he  must  allege  that  the  obstruction  was  wrongfully  encumber- 
ing his  premises,  and  that  he,  therefore,  removed  it,  doing  no 
unnecessary  damage.  If  it  appear  that  he  unnecessarily  destroyed 
it,  or  appropriated  it  to  his  own  use,  the  justification  fails.  This 
shows  that  the  right  of  removal  does  not  depend  on  ownership,  but 
on  his  right  to  protect  his  own  premises  from  invasion.  The  defend- 
ant, therefore,  cannot  be  regarded  as  the  owner  of  the  apples  merely 
because  the  branches  on  which  they  grew  were  wrongfully  encum- 
bering  his  ground.  Suppose  the  defendant's  counsel  is  correct,  as 
he  probably  is  in  the  proposition  that  the  defendant  had  the  right  to 
cut  the  root-  and  branches  of  the  tree  to  the  division  line  so  far  as 
penetrated   or  overhung  his  land,  upon  the  ground  that  they 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  1 55 

were  unlawfully  encumbering  his  premises;  this  justification  does 
not  extend  to  the  carrying  away  and  converting  the  apples  upon 
such  branches  to  his  own  use,  unless  he  was  the  owner  of  the  apples, 
either  solely,  or  in  common  with  the  plaintiff.  The  title  to  the 
apples  depends  upon  the  tide  to  the  tree,  and  the  defendant  was  not 
the  sole  owner  of  any  part  of  the  tree.  The  defendant  is  liable  in 
either  count  in  the  declaration  unless  he  had  some  property  :n  the 
tree. 

The  remaining  ground  of  justification  on  which  the  defendant 
relies  is,  that  he  was  tenant  in  common  with  the  plaintiff  of  the  tree, 
and  consequently  of  its  product.  A  tree  standing  upon  the  division 
line  between  adjoining  proprietors  so  that  the  line  passes  through 
the  trunk  or  body  of  the  tree  above  the  surface  of  the  soil,  is  the 
common  property  of  both  proprietors  as  tenants  in  common.  This 
is  not  denied.  This  is  another  instance  where  the  maxim  that  he 
who  owns  land  owns  to  the  sky  above  it,  is  qualified  and  made  to 
give  way  to  a  rule  of  convenience,  more  just  and  equitable,  and 
more  beneficial  to  both  parties.  To  hold  in  such  case  that  each  is 
the  absolute  owner  of  that  part  of  the  tree  standing  on  or  over  his 
own  land,  would  lead  to  a  mode  of  division  of  the  tree  when  cut, 
that  would  be  impracticable,  and  give  the  right  to  one  to  hew  down 
his  part  of  the  tree  to  the  line  and  thereby  destroy  the  part  belong- 
ing to  the  other.  The  rule  is,  therefore,  settled  that  in  such  case 
the  parties  are  tenants  in  common.  It  is  claimed  that  the  same 
principle  applies  to  this  case,  because  some  of  the  roots  of  the  tree 
extend  into  the  defendant's  land  whence  it  draws  part  of  its  support. 
Waterman  v.  Soper,  1  Ld.  Raym.  737,  is  cited  in  support  of  this 
proposition.  In  that  case  it  is  said  that  it  was  ruled  at  nisi  prius, 
"  that  if  A.  plants  a  tree  upon  the  extremest  limits  of  his  land,  and  the 
tree  growing  extends  its  root  into  the  land  of  B.  next  adjoining,  A. 
and  B.  are  tenants  in  common  of  the  tree.  But  if  all  the  root  grows 
into  the  land  of  A.,  though  the  boughs  overshadow  the  land  of  B., 
yet  the  branches  follow  the  root  and  the  property  of  the  whole  is  in 
A."  There  is  an  anonymous  case  in  2  Roll.  255,  in  which  it  is  held 
that  if  a  tree  grows  in  a  hedge  which  divides  the  land  of  A.  and  B., 
and  the  roots  take  nourishment  of  both  their  lands,  they  are  tenants 
in  common  of  it.  It  is  evident  that  neither  of  those  cases  is  neces- 
sarily decisive  of  the  case  at  bar,  and  that  they  do  not  control  it 
unless  the  principle  is  fairly  deducible  from  them  that  the  adjoining 
proprietors  are  tenants  in  common  of  a  tree  in  all  cases  where  the 
roots  penetrate  the  soil  of  both,  without  reference  to  the  distance  of 
the  tree  from  the  division  line.  We  think  this  broad  principle  is 
not  intended   to  be  established  in  those  cases.     In  the  first.   Water- 


156      CONSTITUExNTS   AND    INCIDENTS    OF   LAND.       [PT.  II.  CM.  II. 

man    v.  Sopcr,  it  is  a    condition    that    the    tree    be    planted  on   the 
extremest  limit  of  the  land,  so  that  growing  it  extends  its  roots  into  the 
land  of  the  adjoining  proprietor.     A  tree  thus  planted  must  almost 
inevitably  in  its  subsequent  growth  extend   its  body  more  or  less 
upon  the  dividing  line.     In  the  other  case  the  tree  grew  in  the  hedge 
which   divided   the   land   of   the   two   proprietors.     Such  a  division 
hedge,  in  England,  like  division  fences  here,  is  generally  pri ma  facie 
the  common  property  of  both,  and  the  tree  may  have  been  treated 
as  constituting  part  of  the  hedge,  but  if  not,  it  must  have  stood  in 
close  proximity  to,  if  not  upon  the  line.    These  cases  may  reasonably 
be  supposed  to  have  been  decided  upon  the  ground  that  the  trees 
stood  substantially  upon  the  line,  and  not  solely  on  the  ground  that 
the  roots  extended  into  the  land  of  each.     This  principle  of  tenancy 
in  common  in  a  tree  merely  because  some  of  its  roots  extend  into 
the  land  of  the  adjoining  proprietor,  regardless  of  the  location  of 
the  tree,  would  be  attended  with  so  much  inconvenience,  uncertainty 
and  embarrassment  in   its   practical  application,  that  it  furnishes  a 
strong  argument  against  the  construction  of  these  cases  contended 
for  by  the  defendant,  as  well  as  against  recognizing  such  a  principle 
unless  the  authorities  lead  to  that  result,  or  the  purposes  of  justice 
imperiously  demand  it.     There  is  at  first  view  an  apparent  equity 
in    the    proposition    that    the    proprietor    from    whose    land  a   tree 
draws    a    portion    of    its    support     should    have    some    benefit  in 
return,     but  to  allow    him    an    equal    right    to    the    tree  and    its 
fruits  because  a  single  root  penetrates  his  soil,  is  quite  as  unjust 
as   to   deny   him  any  right   in   the  tree  whatever.     If  he  is  tenant 
in  common,  what  proportion  does  he  own?     If  his  interest  is  in  pro- 
portion to  the  portion  of  nourishment  the  tree  draws  from  his  land 
how  is  the  fact  to  be  ascertained?     Suppose  the  division  line  runs 
through  a  grove,  a  fruit  yard,  a  nursery  of  trees  or  a  forest,  and  this 
rule  is  adopted,  there  might  be  a  belt  of  land  rods  in  width,  on 
which  the  parties  would  be  tenants  in  common  of  more  or  less  of  the 
trees.     How  is  each  to  know  or  ascertain  what  he  owns  solely,  and 
what  in  common,  and  in  what  proportion,  especially  as  the  rights  of 
the  parties  would  be  constantly  changing  by  the  growth  and  conse- 
quent  extension  of  roots  across  the  division  line.     Principles  of  law 
and  rules  of  property  must  be  such  as  are  capable  of  practical  appli- 
cation to  business  affairs.     But  suppose  these  cases  go  to  the  extent 
the  defendant  claims,  then  what  are  the  authorities  opposed  to  them? 
In   Masters  v.    Polite,   2    Roll.  141,  it  was  adjudged  that  if  a  tree 
grows  in  A.'s  close,  and  roots  in  B.'s,  yet  the  body  of  the  tree  being 
in  the   soil   of   A.,  all   the  residue  of  the  tree  belongs  to  him  also. 
This  case  directly  in  point  to  show  that  the  plaintiff  in  the  case  before 


IV.  i.J  FRUCTUS  NATURALES:  TREES.  1 57 

us  is  the  sole  owner  of  the  tree,  and  it  is  directly  opposed  to  Water- 
man v.  Soper,  upon  the  construction  put  upon  that  case  by  the  defend- 
ant's counsel;  and  also  opposed  to  the  anonymous  case  above  cited, 
2  Roll.  255,  unless  that  case  is  to  be  interpreted  as  already  stated; 
but  if  those  two  cases  stand  on  the  ground  heretofore  stated,  then 
there  is  no  such  conflict.  Miller  v.  Fondyce,  Poph.  161,  163,  and 
Norris  v.  Baker,  3  Bulst.  178,  seem  to  support  the  principle  of 
Masters  v.  Pollie,  relied  on  by  the  plaintiff's  counsel.  The  plaintiff's 
counsel  relies  on  Holden  v.  Coates,  22  E.  C.  L.  264.  The  facts  in 
that  case  were  much  stronger  in  favor  of  a  tenancy  in  common  than 
in  this  case,  and  not  so  clearly  in  favor  of  an  entire  title  in  the  party 
on  whose  land  the  body  of  the  tree  stood,  as  in  this  case.  The  trunk 
of  the  tree  stood  in  the  defendant's  land,  and  the  lateral  or  spur 
roots  grew  in  the  land  of  both  parties.  The  plaintiff  gave  evidence 
to  show  that  there  was  no  tap  root,  and  that  all  the  principal  roots 
from  which  the  tree  derived  its  main  nourishment  were  those  which 
grew  in  the  plaintiff's  land.  The  defendant's  evidence  was  that 
there  was  a  tap  root  growing  entirely  in  his  land,  and  that  the  spur 
roots  grew  alike  in  the  land  of  each  party.  The  action  was  trespass 
for  cutting  the  tree.  Littledale,  J.,  speaking  of  Masters  v.  Pollie 
and  Waterman  v.  Soper,  says,  "  I  remember  when  I  read  these  cases 
I  was  of  opinion  that  the  doctrine  in  the  case  of  Masters  v.  Pollie 
was  preferable  to  that  in  Waterman  v.  Soper,  and  I  still  think  so." 
So  far  as  this  expression  of  opinion  goes,  the  case  makes  for  the 
plaintiff;  but  as  the  case  ultimately  turned,  this  point  can  hardly  be 
said  to  have  been  decided.  Had  the  court  followed  either  of  these 
cases,  a  verdict  would  have  been  directed.  But  the  court,  after 
telling  the  jury  not  to  decide  the  case  upon  the  relative  proportion 
of  nourishment  derived  by  the  tree  from  the  soil  of  the  plaintiff  and 
defendant,  left  the  case  to  the  jury  to  find  from  the  situation  of  the 
trunk  of  the  tree  above  the  soil,  and  of  the  roots  within  it,  on  whose 
land  the  tree  was  first  planted,  and  to  render  their  verdict  accord- 
ingly; telling  them  if  they  could  not  find  that  fact,  he  would  then 
give  them  directions  on  the  questions  they  would  then  have  to  con- 
sider. This  view  is  also  in  favor  of  the  plaintiff  in  the  case  at  bar, 
because  the  case  shows  that  the  plaintiff  planted  the  tree  on  his  own 
land,  six  feet  from  the  division  line.  The  jury  in  that  case,  how- 
ever, reported  that  they  could  not  tell  on  whose  land  the  tree  did  first 
grow;  and  a  verdict  was  taken  for  the  defendant  by  consent,  on 
some  terms  agreed  on  between  the  parties;  so  that  the  case  can 
hardly  be  said  to  be  of  much  authority  as  a  decision.  But  Lyman  v. 
Hale,  11  Conn.  177,  is  identical  with  the  present  case  in  principle, 
and  in  its  facts  also,  except  the  tree  in  that  case  was  two  feet  nearer 


158      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

the  dividing  line  than  in  this  case.  The  court  in  that  case,  on  full 
discussion  and  review  of  the  authorities,  decided  that  upon  reason, 
principle,  and  weight  of  authority,  the  tree  and  the  fruit  growing 
on  the  branches  overhanging  the  defendant's  land,  were  the  sole 
property  of  the  plaintiff  on  whose  land  the  body  of  the  tree  stood, 
and  that  the  defendant  was  liable  in  trespass  for  gathering  and  con- 
verting to  his  own  use  the  fruit  on  such  overhanging  branches.  The 
elementary  books  cited  are  in  conflict,  all  referring  to  Masters  v. 
Pollie,  or  Waterman  v.  Soper ;  some  following  one  and  some  the  other 
of  these  cases. 

There  seems  to  have  been  the  same  conflict  of  opinion  in  the  civil 
iaw  on  this  subject,  notwithstanding  the  law  of  vicinage  and  the 
rights  and  duties  of  adjoining  proprietors,  were  by  the  Roman  Code 
defined  with  much  more  particularity  than  by  the  common  law. 
There  is  a  passage  in  the  Institutes  of  Justinian  that,  as  it  is  generally 
translated,  would  seem  to  favor  the  doctrine  of  Waterman  v.  Soper, 
as  claimed  by  the  defendant.  After  stating  that  if  one  sets  his  plant 
in  another's  ground,  it  becomes  the  property  of  the  owner  of  the 
land  where  it  is  set  after  it  has  taken  root,  the  passage  proceeds  as 
follows:  "  So  that  if  the  tree  of  a  neighbor  borders  so  closely  upon 
the  ground  of  Titius  as  to  take  root  in  it,  and  be  wholly  nourished 
there,  we  may  affirm  that  such  tree  is  become  the  property  of  Titius; 
for  reason  doth  not  permit  that  a  tree  should  be  deemed  the  prop- 
erty of  any  other  than  of  him  in  whose  ground  it  hath  rooted ;  there- 
fore if  a  tree  planted  near  the  bounds  of  one  person,  shall  also  extend 
its  roots  into  the  land  of  another,  it  will  become  common  to  both." 
Instit.  2,  1,  31,  Coop.  Just.  79.  This  passage  may  have  reference 
only  to  a  tree  so  near  the  line  as  to  be  regarded  as  standing  sub- 
stantially upon  the  line.  But  however  this  may  be,  it  is  to  be 
observed  that  the  civil  law  in  the  days  of  Rome  required  a  boundary 
of  five  feet  to  be  left  between  farm  and  farm,  or  rather  between  the 
trees  of  the  two  adjoining  proprietors,  except  in  the  case  of  an  olive 
or  a  fig  tree,  where  a  space  of  nine  feet  was  required.  It  is  evident 
that  the  passage  above  quoted  has  reference  to  trees  set  within  the 
prohibited  distance  from  the  extreme  boundary  line.  There  might 
be  more  reason  in  saying  if  a  party  set  his  tree  on  the  extreme  limit 
of  his  land,  in  violation  of  express  law,  that  the  adjoining:  proprietor 
should  become  tenant  in  common  of  the  tree,  than  if  no  such  legal 
regulation  existed,  or  if  the  tree  was  set  no  nearer  the  division  line 
than  the  law  prescribed.  On  the  other  hand,  it  is  laid  down  in 
another  book  of  the  civil  law,  that  such  tree  extended  its  roots  into 
the  land  of  the  adjoining  proprietor,  is  nevertheless  the  property  of 
him   in   whose  land  it    had  its  origin.      Dig.  47,  7,  6,  2.     This  is  the 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  1 59 

rule  recognized  by  Littledale,  J.,  in  Holden  v.  Coates.  This  rule 
generally  would  lead  to  the  same  result  as  the  rule  that  the  tree 
belongs  to  him  on  whose  land  the  trunk  or  body  of  the  tree  is  situ- 
ated; as  a  tree  would  naturally  be  supposed  to  grow  where  it  was  set 
or  planted.  Yet  in  the  case  last  cited  the  jury  were  unable  to  find 
on  whose  land  the  tree  was  planted,  although  the  trunk  of  the  tree 
was  on  the  defendant's  land,  because  the  court  told  the  jury  to 
determine  it  from  the  evidence  as  to  the  situation  of  the  trunk  of 
the  tree  above  the  soil,  and  of  the  roots  within  it.  Domat,  in  treat- 
ing this  subject,  attributes  no  consequence  to  the  setting  of  a  tree 
nearer  the  division  line  than  the  law  allows,  except  that  the  party 
thus  offending  may  be  compelled  to  remove  it  and  pay  the  damages. 
He  does  not  intimate  that  the  tree  thereby  becomes  the  common 
property  of  the  two  adjoining  proprietors.  I  Domat,  Civil  Law,  589, 
tit.  6,  sec.  1,  art.  2;  591,  sec.  2,  art.  1;  Cooper's  Justinian,  460, 
notes.  The  civil  law  on  the  whole  is  rather  in  favor  of  the  plaintiff, 
and  is  more  in  accordance  with  Masters  v.  Pollie.  The  civil  code  of 
France  regulates  the  subject  by  declaring  the  boundary  hedges  and 
the  trees  within  them,  with  some  exceptions,  common  property. 
The  civil  law  cannot  be  referred  to  as  authority,  and  can  have  no 
bearing  unless  for  its  reason,  and  then  only  on  a  question  not  settled 
by  the  common-law. 

On  the  whole  we  think  the  weight  of  authority,  reason  and  analogy, 
as  well  as  convenience,  is  in  favor  of  the  principle  that  a  tree  and  its 
products  is  the  sole  property  of  him  on  whose  land  it  is  situated; 
and  that  considering  the  necessary  uncertainty  of  evidence  as  to  the 
location  and  extent  of  the  roots  of  a  tree,  its  location  and  property 
should  be  determined  by  the  position  of  the  trunk  or  body  of  the 
tree  above  the  soil,  rather  than  by  the  roots  within  or  branches 
above  it.  But  even  if  a  tree  standing  with  its  trunk  at  the  extreme 
limit  of  one's  land,  with  the  main  roots  extending  immediately  into 
the  soil  of  the  adjoining  proprietor,  should  be  regarded  as  so  far 
substantially  upon  the  line  as  to  become  common  property,  it  cannot 
be  so  regarded  in  relation  to  the  tree  in  question,  situate  six  feet 
from  the  division  line. 

No  importance  is  attached  to  the  agreement  between  the  plaintiff 
and  the  defendant's  grantor  as  to  the  distance  at  which  each  might 
set  trees;  as  the  defendant,  especially  as  for  aught  that  appears, 
purchased  without  notice  of  it,  and  is  not  bound  by  such  verbal 
agreement. 

Judgment  reversed  and  new  trial  granted. 


l6o      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

HOFFMAN  v.  ARMSTRONG. 

48  New  York,  201.  —  1872. 
[Reported  herein  at  p.  97.] 


PURNER  v.  PIERCY. 

40  Maryland,  212.  —  1874. 


Stewart,  J.,  delivered  the  opinion  of  the  court. — *  *  *  There 
then  remained  but  the  fifth  count,  upon  which  the  plaintiff  could 
recover,  which  alleged  the  purchase  from  the  plaintiff  by  the  defend- 
ant of  the  fruit  growing  in  his  peach  orchard,  and  that  the  defendant 
took  possession  thereof  and  carried  it  away.  We  think  the  jury 
were  clearly  and  correctly  instructed  by  the  granting  of  the  plain- 
tiff's prayer.     *     *     *     * 

But  the  defendant's  counsel  insists  that  the  contract  was  invalid 
under  the  operation  of  the  fourth  section  of  the  statute  of  frauds. 
That  section  provides  that  no  action  shall  be  brought  to  charge  any 
person  upon  any  contract  or  sale  of  lands,  or  any  interest  in  or  con- 
cerning them,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  thereof,  shall  be  in  writing,  etc. 

Agreement  and  contract  seem  to  be  considered  in  the  section  of 
the  same  purport,  and  the  appellant's  counsel  insists  the  contract  or 
agreement  relied  upon  here  to  charge  the  defendant  is  for  lands, 
or  some  interest  in  or  concerning  them,  and  therefore  not  to  be 
established  by  parol  proof. 

It  would  be  giving  to  the  statute  a  very  latitudinarian  construction 
to  bring  the  case  in  question  within  the  mischief  designed  to  be 
avoided  by  the  statute.  We  have  been  referred  to  no  case  in  this 
State,  and  have  found  none  to  sanction  such  doctrine.  The  cases 
of  Ellicott  v.  Peterson  s  Ex  rs,  4  Md.  476,  and  Smith  v.  Bryan,  5  Md. 
141,  are  against  such  enlarged  construction. 

The  first  case,  in  regard  to  agreements  to  be  performed  within  a 
year,  decides  that  a  complete  performance  by  one  of  the  parties 
within  the  year  is  sufficient  compliance  with  the  requirements  of  the 
statute. 

The  latter  case  substantially  holds  that  the  sale  of  standing  trees, 
under  the  cir<  umstance  of  that  case,  was  a  sale  of  goods,  and  con- 
formed to  the  demands  of  the  seventeenth  section,  and  refers  with 
approval  to  sec.  271  of  Greenleaf's  Evidence. 

There  is  certainly  some  conflict  in  the  adjudged  cases  in  regard 
to   the    interpretation   of  contracts  for  the  sale  of  crops  and  the 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  l6l 

natural   products   growing   upon   land;   and    it   is  difficult  to  deduce 
therefrom  any  clearly  defined  rule  upon  the  subject. 

Mr.  Alexander,  in  his  admirable  treatise  on  the  British  Statutes  in 
force  here,  has  carefully  referred  to  numerous  cases,  both  English 
and  American,  and  deduced  therefrom  the  distinctions  which  seemed 
to  have  prevailed  in  regard  to  the  operation  of  the  statute  in  relation 
to  growing  crops  and  other  produce  of  land.  At  page  532  et  seq., 
contracts,  as  to  the  natural  product  of  the  land,  are  distinguished 
from  such  as  relate  to  crops  raised  by  the  industry  of  man,  and  yield- 
ing an  annual  profit.  A  distinction  is  also  noted  between  the  natural 
produce  when  severed  by  the  seller  or  by  the  buyer.  He  refers  to 
the  recent  work  of  Benjamin  on  Sales,  84  et  seq.,  for  a  fuller  dis- 
cussion. Mr.  Benjamin,  at  p.  99,  remarks,  from  all  that  precedes, 
the  law  on  the  subjects  of  the  sale  of  growing  crops  may  be  summed 
up  in  the  following  proposition,  viz.:  Growing  crops,  if  fructus 
industriales,  are  chattels,  and  an  agreement  for  the  sale  of  them, 
whether  mature  or  immature,  whether  the  property  in  them  is  trans- 
ferred before  or  after  severance,  is  not  an  agreement  for  the  sale  of 
any  interest  in  land,  and  is  not  governed  by  the  fourth  section  of 
the  Statute  of  Frauds.  Growing  crops,  if  fructus  ziaturales,  are  part 
of  the  soil,  before  severance,  and  an  agreement  therefore  vesting  an 
interest  in  them  in  the  purchaser  before  severance  is  governed  by 
the  fourth  section;  but  if  the  interest  is  not  to  be  vested  till  they 
are  converted  into  chattels  by  severance,  then  the  agreement  is  an 
executory  agreement  for  the  sale  of  goods,  wares  and  merchandise, 
governed  by  the  seventeenth,  and  not  by  the  fourth  section  of  the 
statute. 

Assuming  these  distinctions  to  be  well  founded,  still  what  is  the 
natural  and  what  the  artificial  product  remain  to  be  determined  in 
each  case.  Mr.  Phillips,  in  his  work  on  Evidence,  3  vol.  250,  says, 
the  statute  does  not  include  agreements  for  the  sale  of  the  pro- 
duce of  a  given  quantity  of  land,  and  which  will  afterwards  become 
a  chattel;  though  some  advantage  may  accrue  to  the  vendee  by  its 
continuing  for  a  time  in  the  land. 

In  Taylor's  recent  book  on  the  Law  of  Evidence,  2d  vol.  sec.  952, 
the  following  propositions  are  submitted:  1st.  A  contract  for  the 
purchase  of  fruits  of  the  earth,  ripe,  though  not  yet  gathered,  is  not 
a  contract  for  any  interest  in  lands,  though  the  vendee  is  to  enter 
and  gather  them.  2d.  A  sale  of  any  growing  produce  of  the  earth, 
reared  annually  by  labor  and  expense,  and  in  actual  existence,  at 
the  time  of  the  contract,  as,  for  instance,  a  growing  crop  of  corn, 
hops,  potatoes,  or  turnips,  is  not  within  the  fourth  section,  though 
the  purchaser  is  to  harvest  or  dig  them.    3d.  An  agreement  respecting 

LAW  OF  TROP.   IN  LAND  —  II 


l62      CONSTITUENTS    AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

the  sale  of  a  growing  crop  of  fruit,  or  grass,  or  of  standing  under- 
wood, growing  poles  or  timber,  is  within  the  fourth  section,  and  a 
written  contract  of  sale  cannot  be  dispensed  with. 

However  sound  his  first  and  second  propositions,  we  think  his 
third  is  to  be  taken  with  some  qualification  —  and  that  a  growing 
crop  of  peaches  or  other  fruit,  requiring  periodical  expense,  industry 
and  attention,  in  its  yield  and  production,  may  be  well  classed  as 
fructus  industriales,  and  not  subject  to  the  fourth  section  of  the 
statute. 

Brown  on  Statute  of  Frauds,  in  sections  236,  237,  246,  247,  and 
249,  and  Greenleaf's  Ev.  1  vol.  sec.  271,  have  furnished  from  the 
adjudged  cases,  a  construction  more  in  consonance  with  our  views 
upon  the  subject,  and  is  substantially  to  the  following  effect:  There 
is  nothing  in  the  vegetable  or  fruit  which  is  an  interest  in,  or  con- 
cerning land,  when  severed  from  the  soil,  whether  trees,  grass  and 
other  spontaneous  growth  (prima  vesturd)  or  grain,  vegetables,  or 
any  kind  of  crops  (fructus  industriales},  the  product  of  periodical 
planting  and  culture;  they  are  alike  mere  chattels,  and  the  severance 
may  be  in  fact,  as  when  they  are  cut  and  removed  from  the  ground; 
or  in  law,  as  when  they  are  growing,  the  owner  in  fee  of  the  land, 
by  a  valid  conveyance,  sells  them  to  another  person,  or  where  he 
sells  the  land,  reserving  them  by  express  provision. 

As  a  general  rule,  if  the  products  of  the  earth  are  sold  specifically, 
and  by  the  terms  of  the  contract  to  be  separately  delivered,  as  chat- 
tels, such  a  sale  is  not  affected  by  the  fourth  section  of  the  statute, 
as  amounting  to  a  sale  of  any  interest  in  the  land.  When  such  is  the 
character  of  the  transaction,  it  matters  not  whether  the  product  be 
trees,  grass  and  other  spontaneous  growth,  or  grain,  vegetables,  or 
other  crops  raised  periodically  by  cultivation  —  and  it  is  quite  imma- 
terial whether  the  produce  is  fully  grown  or  in  the  process  of  grow- 
ing, at  the  time  of  making  the  contract. 

The  circumstance  that  the  produce  purchased  may,  or  probably, 
or  certainly  will  derive  nourishment  from  the  soil  between  the  time 
of  the  contract  and  the  time  of  the  delivery,  is  not  conclusive  as  to 
the  operation  of  the  statute. 

If  the  contract,  when  executed  is  to  convey  to  the  purchaser  a 
mere  chattel,  though  it  may  be  in  the  interim  a  part  of  the  realty, 
it  is  not  affected  by  the  statute;  but  if  the  contract  is  in  the 
interim  to  confer  upon  the  purchaser  an  exclusive  right  to  the  land 
for  a  time,  for  the  purpose  <>(  making  a  profit  of  the  growing  surface, 
it  is  affected  by  the  statute,  ami  must  be  in  writing,  although  the 
purchaser  is  at  the  last  to  take  from  the  land  only  a  chattel. 

To  put  a  reasonable  construction  upon  the  terms  of  the  fourth 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  163 

section  of  the  statute,  from  the  evidence  in  this  case,  it  is  clear  that 
the  contract  in  question  is  not  within  its  meaning.  It  had  been 
executed  by  the  plaintiff,  and  the  fruit  had  been  gathered,  and  in 
fact  paid  for  at  the  time  of  the  suit. 

It  was  in  proof  that  a  part  of  the  fruit  was  prematurely  ripe  at  the 
time  of  the  contract. 

It  would  be  a  perversion  of  the  objects  of  the  statute  to  hold  as 
invalid  the  sale,  in  other  respects  legal,  of  the  growing  crop  of 
peaches,  with  no  intent  of  the  parties  to  sell  or  purchase  the  soil, 
but  affording  a  mere  license,  express  or  implied,  to  the  purchaser  to 
go  upon  the  land,  to  gather  the  fruit  and  remove  the  same.  Sub- 
stantially, to  use  the  language  of  sec.  271,  of  1  Greenleaf's  Ev., 
the  transaction  takes  its  character  of  realty  or  personalty  from  the 
principal  subject-matter  of  the  contract,  and  the  interest  of  the 
parties,  and,  therefore,  a  sale  of  any  growing  produce  of  the  earth, 
in  actual  existence,  at  the  time  of  the  contract,  whether  it  be  in  a 
state  of  maturity  or  not,  is  not  to  be  considered  a  sale  of  an  interest 
in,  or  concerning  land.  Where  timber  or  other  produce  of  the  land, 
or  any  other  thing  annexed  to  the  freehold,  is  specifically  sold, 
whether  to  be  severed  from  the  soil  by  the  vendee,  or  to  be  taken  by 
the  vendee,  under  a  special  license  to  enter  for  that  purpose,  it  is 
still,  in  contemplation  of  the  parties,  a  sale  of  goods  only,  and  not 

within  the  statute. 

Judgment  affirmed. 


SMITH  v.  PRICE. 

39  Illinois,  28.  —  1865. 

Mr.  Justice  Lawrence  delivered  the  opinion  of  the  Court.  — This 
was  a  bill  in  chancery  filed  by  Smith,  plaintiff  in  error,  to  enjoin 
Price,  the  defendant  in  error,  from  removing  certain  fruit  trees 
growing  in  a  nursery,  and  certain  ornamental  shrubbery,  from  a 
tract  of  land  sold  by  the  latter  to  the  former.  Price  answered  (the 
oath  to  his  answer  having  been  waived),  and  on  the  coming  in  of 
the  answer  a  motion  was  made  to  dissolve  the  injunction.  A  repli- 
cation was  filed  and  the  case  seems  to  have  been  irregularly  set 
down  for  final  hearing  at  the  same  time  with  hearing  the  motion  to 
dissolve,  and  to  have  been  finally  disposed  of  upon  the  pleadings  and 
the  affidavits  filed  for  and  against  the  motion.  As  no  exception  was 
taken  to  this  proceeding,  it  was  probably  had  by  consent.  The 
Court  rendered  a  decree  making  the  injunction  perpetual  as  to  a  part 
of  the  trees,  and  dissolving  it  as  to  a  part;  and  from  this  decree  the 
complainant  prosecutes  a  writ  of  error. 


164      CONSTITUENTS    AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

The  defendant  admits  a  sale  of  the  land  by  himself  to  the  com- 
plainant, and  that  the  latter  went  into  possession  under  the  contract 
of  purchase,  but  insists  that  one  of  the  terms  of  the  sale  was  a 
verbal  reservation  of  the  nursery  trees  and  some  other  ornamental 
shrubbery.  The  proof  made  in  the  affidavits  upon  this  point  is 
uncertain  and  contradictory. 

While  fruit  trees  and  ornamental  shrubbery  grown  upon  premises 
leased  for  nursery  purposes  would  probably  be  held  to  be  personal 
property,  as  between  the  landlord  and  tenant,  yet  there  is  neither 
authority  nor  reason  for  saying  that,  as  between  vendor  and  vendee, 
such  trees  and  shrubbery  would  not  pass  with  a  sale  of  the  land. 
They  are  annexed  to,  and  a  part  of  the  freehold.  As  between  vendor 
and  vendee,  even  annual  crops  pass  with  the  land  where  possession 
is  given.  Bull  v.  Griswold,  19  111.  631.  Under  the  contract  of  sale 
and  the  delivery  of  possession  by  Price  to  Smith,  the  latter  became 
the  owner  of  the  trees  as  well  as  of  the  soil,  and  it  would  be  a  viola- 
tion of  the  most  familiar  rules  of  evidence  to  receive  proof  of  a 
verbal  arrangement  cotemporaneous  with  the  written  contract  and 
impairing  its  legal  effect.  The  parties,  in  executing  the  written 
instrument,  deliberately  made  it  the  exclusive  evidence  of  the  terms 
of  their  agreement.  This  instrument  shows  a  sale  of  the  land  in 
such  terms  as  to  pass  the  trees.  No  reservation  is  made,  and  to 
permit  the  vendor  now  to  show  that  there  was  a  verbal  agreement 
for  their  reservation,  would  be  to  permit  him  to  prove  a  verbal  con- 
tract, inconsistent  with  the  legal  import  of  that  executed  by  the 
parties  under  their  hands  and  seals.  This  the  law  forbids.  We  find 
nothing  in  the  case  to  make  it  an  exception  to  this  familiar  principle, 
and  it  is,  therefore,  unnecessary  to  advert  to  the  evidence  in  detail. 
As  the  record  shows  that  Pri^e  has  actually  removed  a  part  of  the 
shrubbery,  and  claimed  the  right  to  move  much  more,  it  was  a 
proper  case  for  an  injunction,  and  the  decree  will  be  reversed  and 
the  cause  remanded,  with  instructions  to  the  court  to  proceed  in 
conformity  with  this  opinion. 

Decree  reversed. 


BATTERMAN  v.  ALBRIGHT. 

122  New  York,  484.  —  1890. 

A.I  1  ion  for  damages  for  alleged  conversion  by  defendant  of  nursery 
trees,  grape-vines  and  bushes  standing  and  growing  on  a  farm  which 
was  formerly  the  property  ot  Peter  S.  Markle,  who  was  a  nursery- 
man.     The  farm  was  subject   to  a  mortgage  made  in  1868.      Plaintiff 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  165 

now  claims  title  to  the  trees,  etc.,  in  question  by  virtue  of  an  execution 
sale  in  1877,  on  a  judgment  against  Markle.  Defendant  took  pos- 
session of  the  premises  under  a  foreclosure  sale  in  1878,  had  on  the 
mortgage  in  question.  Judgment  below  for  the  defendant.  Plain- 
tiff appeals. 

Bradley,  J.  —  It  may  be  assumed  that,  as  against  Markle,  the 
judgment-debtor,  the  plaintiff,  by  his  purchase  at  the  sale  made  by 
the  constable  upon  the  execution,  took  title  to  the  nursery  trees  and 
the  right  to  remove  them.  The  question  for  consideration  has  rela- 
tion to  the  effect,  upon  such  rights,  of  the  foreclosure  of  the  mort- 
gage, and  the  title  to  the  premises  derived  from  it.  The  trees  and 
bushes  in  question  had  been  grown  in  the  nursery  since  the  mortgage 
was  made;  and  the  plaintiff's  claim  of  title  was  derived  wholly  from 
his  purchase  on  the  execution  sale.  As  against  the  mortgagor,  the 
foreclosure  and  sale  were  effectual  to  vest  the  title  to  the  trees  in 
the  purchaser,  and  in  the  defendant  as  his  grantee.  The  rule,  as 
between  mortgagor  and  mortgagee  as  to  crops  growing  in  mortgaged 
premises,  is  no  less  favorable  to  the  claim  of  the  plaintiff  than  that 
relating  to  nursery  trees,  which  partake  of  the  same  character. 
And  the  principle  applicable  to  both  in  such  case  may  be  treated  as 
the  same.  The  doctrine  on  the  subject  of  emblements,  and  who, 
in  their  relation  to  the  land  on  which  they  were  growing,  were 
entitled  to  them,  was  well  defined  at  common-law;  and  it  was 
distinct  from  that  of  fixtures.  They  were  treated  as  so  distinct 
from  the  real  estate  as  to  be  subject  to  many  of  the  incidents  of 
personal  chattels.  Co.  Litt.  55b;  2  Bl.  Comm.  404.  And  although 
they  did  not  go  to  the  heir,  they  did  to  the  devisee,  and  to  the 
remainderman  for  life.  Broom's  Leg.  Max.,  305.  And  in  this  State 
.they  go  to  the  devisee,  subject  only  to  the  payment  of_  debts 
of  the  testator  and  the  legacies  given  by  his  will.  Bradner  v. 
Faulkner,  34  N.  Y.  347;  Stall  v.  Wilbur,  77  1:1.  158.  They, 
belonging  to  the  grantor,  also  passed  with  a  conveyance  of  the 
land,  and  such  is  now  the  rule.  And  the  common  law,  in  respect 
to  emblements,  is  not  very  greatly  modified  by  the  statute,  which 
provides  that  they  be  deemed  assets  and  shall  go  to  executors 
and  administrators  to  be  applied  and  distributed  as  personal  estate. 
2  R.  S.  82,  sec.  6.  It  may  be  observed  that  the  doctrine  applicable 
to  growing  crops  is  distinguishable  from  that  relating  to  Other  per- 
sonal property  on  land  as  between  grantor  and  grantee  and  mort- 
gagor and  mortgagee;  the  theory  on  which  it  rests  is  that  they  in 
some  sense  appertain  to  the  realty.  And  the  general  rule  as  declared 
from  an  early  day  by  text  and  judicial  writers,  is  that  a  party  enter- 


1 66      CONSTITUENTS   AND    INCIDENTS    OK   LAND.      [PT.  II.   CII.  II. 

ing  into  possession  by  title  paramount  to  the  right  of  the  tenant 
takes  them.  Co.  Litt.  55b;  Davis  v.  Eyton,  7  Bing.  154.  Whether, 
without  the  aid  of  some  statute,  that  rule  is  subject  to  any  qualifica- 
tions or  exceptions,  and  if  so,  what,  it  is  now  unnecessary  to  inquire 
or  determine.  In  the  present  case,  the  mortgagor  had  been  in 
default  several  years  at  the  time  of  the  plaintiff's  purchase  of  the 
nursery  trees  on  the  execution  sale.  And  the  defendant's  entry  into 
possession  of  the  premises  was  by  title  paramount  to  any  right  which 
could  have  been  derived  from  the  mortgagor  in  them  subsequently 
to  the  time  the  mortgage  was  given.  Although  since  the  right  to 
maintain  ejectment  is  denied  to  a  mortgagee  by  statute  (2  R.  S.  312, 
sec.  57;  Code,  sec.  1498),  his  mortgage  is  a  mere  security, 
and  the  title  to  the  mortgaged  premises  remains  in  the  mort- 
gagor, the  foreclosure  and  sale  in  practical  effect  operates  to 
eliminate  the  defeasance,  and  the  purchaser  takes  the  title  of  the 
mortgagor  as  of  the  time  the  mortgage  lien  was  created.  Rector,  etc. 
v.  Mack,  93  N.  Y.  488.  And  while  the  plaintiff,  as  against  the  mort- 
gagor and  without  liability  to  the  mortgagee,  may  have  taken  the 
nursery  trees  from  the  premises  prior  to  the  time  of  the  foreclosure 
of  the  mortgage,  he  had  no  such  right,  as  against  the  purchaser  or 
his  grantee  who  had  entered  under  the  title  perfected  by  the  sale  on 
foreclosure  and  the  conveyance  made  pursuant  to  it.  Lane  v.  King, 
8  Wend.  584;  Shepard  v.  Philbrick,  2  Den.  174;  Gillet  v.Balcom,  6 
Barb.  370;  Jeivett  v.  Keenholts,  16  Id.  194;  Sherman  v.  Willet,  42 
N.  Y.  146;  Aldrich  v.  Reynolds,  1  Barb.  Ch.  613;  Adams  v.  Beadle,  47 
la.  439,  29  Am.  Rep.  487.  The  suggestion  of  the  plaintiff's  counsel 
that  there  has  been  a  modification  of  the  rule  of  law  on  the  subject, 
and  that  the  case  of  Lane  N.King  is  not,  therefore,  entitled  to  the 
weight  of  authority,  may  be  applicable  to  fixtures  to  which  the 
authorities  cited  by  him  relate.  But  emblements  are  not  fixtures 
within  the  meaning  of  the  rule  applied  to  them.  The  subject  of  the 
former  is  treated  in  the  law  as  distinct  from  the  latter;  and  while 
they  may  be  taken  on  execution,  supported  by  a  judgment,  not  a  lien 
upon  the  realty,  those  things  which  have  become  fixtures  cannot. 
But  the  doctrine  peculiar  to  growing  crops,  originating  in  considera- 
tions deemed  beneficial  to  the  interests  of  agriculture,  has  remained 
substantially  unchanged,  and  the  rule,  as  stated  in  Lane  v.  King,  was 
not  only  followed  in  some  of  the  cases  before  cited,  but  that  case 
and  its  doctrine  have  more  recently  been  judicially  cited  and  referred 
to  with  approval  in  this  State,  Harris  v.  Frink,  49  N.  Y.  31;  Samson 
v.  Rose,  65  id.  416,  and  it  quite  uniformly  prevails  where  the  com- 
mon law  on  the  subject  remains  in  force.  The  rigor  of  the  old 
common  law,  which  gave  forfeiture  as  the  consequence  of  default  in 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  167 

payment  of  a  mortgage,  has  been  modified  so  as  to  permit  payment 
at  any  time  before  sale  on  foreclosure.  But  that  does  not  affect  the 
question  under  consideration.  And  our  attention  is  called  to  no 
reason  why  the  considerations  upon  which  the  doctrine  relating  to 
emblements  was  founded,  and  has  since  been  observed,  are  now  any 
less  entitled  to  sanction  than  formerly.  The  fact  that  the  right  to 
ejectment  is  taken  away  from  the  mortgagee  by  the  statute  and  the 
mortgage  reduced  to  a  mere  chose  in  action  secured  by  lien  upon  the 
land,  while  the  defeasance  remains  effectual,  does  not  seem  to  have 
any  essential  bearing  upon  the  question,  inasmuch  as  the  perfecting 
of  title  under  it  has  relation  to  the  time  it  became  a  lien.  The  case 
of  Mott  v.  Palmer,  1  N.  Y.  564,  is  not  analogously  inconsistent  with 
the  view  here  taken.  There  the  right  of  the  plaintiff,  under  his 
agreement  with  the  owner  of  the  premises,  arose  before  the  sale  and 
conveyance  to  the  defendant.  And  if  the  right  of  the  plaintiff  in 
the  present  case  had  been  acquired  to  the  trees  prior  to  the  mort- 
gage, a  different  question  would  have  been  presented.  In  that  event, 
the  sale  upon  the  execution  and  purchase  by  the  plaintiff  may  have, 
so  far  as  essential,  been  treated  as  a  severance  of  the  growing  trees 
from  the  realty.  But  they  cannot  be  so  treated  as  against  the  title 
paramount  of  the  defendant.  Shepard  v.  Philbrick,  2  Den.  174; 
Gillett  v.  Balcom,  6  Barb.  370.  These  views  lead  to  the  conclusion 
that  the  plaintiff  was  not  entitled  to  recover,  if  the  foreclosure  of 
the  mortgage  was  effectually  made.  The  plaintiff's  counsel  contends 
that  it  was  not  because:  (1)  One  Mary  M.  Markle  was  not  made  a 
party  to  the  foreclosure  action,  and  (2)  the  plaintiff  was  not  a  party 
to  it.  The  first  objection  was  founded  on  the  fact  that  the  mort- 
gagee had  assigned  a  partial  interest  in  the  mortgage  to  Mary  M. 
Markle.  This  did  not  render  the  decree  invalid.  The  mortgagee 
was  a  proper  party  plaintiff,  and  the  omission  to  unite  the  other 
party  having  a  claim  upon  a  portion  of  the  amount  secured  by  the 
mortgage  furnished  no  ground  for  a  collateral  attack  by  the  mort- 
gagor or  the  plaintiff.  The  equity  of  redemption  was  barred  by 
the  foreclosure.  And  the  plaintiff  had  no  relation  to  the  realty 
to  make  him  a  necessary  party  for  any  purpose  essential  to  the 
title  derived  from  the  foreclosure  of  the  mortgage.  He  could 
acquire  no  interest  in  it  by  his  purchase  upon  his  execution  sale. 
Nor  is  it  found  that  the  mortgagee,  at  the  time  of  the  foreclosure 
sale  had  any  notice  of  the  claim  of  the  plaintiff  founded  upon  his 
purchase.     Code,  sec.  1671. 

Judgment  affirmed. 


l68      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

DUBOIS  v.  BEAVER. 

25  New  York,  123.  —  1862. 

Trespass  by  one  of  two  adjoining  landowners  against  the  other 
for  cutting  down  line  trees.  Judgment  for  plaintiff.  Defendant 
appeals. 

Allen,  J.  *  *  *  It  is  not  necessary  to  determine  whether  the 
parties  were  technically  tenants  in  common  of  the  trees  growing 
upon  the  boundary  lines  separating  their  respective  farms,  with  all 
the  ordinary  rights  and  incidents  of  such  an  estate.  The  trees  thus 
growing  are  called,  in  the  case,  "  line  trees."  By  this,  I  under- 
stand, is  meant,  not  trees  marked  and  set  apart  by  the  parties  as  evi- 
dences or  monuments  of  the  division  line,  but  trees  deriving  their 
nourishment  from  roots  extending  on  both  sides  of  the  line,  and  with 
bodies  so  directly  over  the  line,  and  necessarily  on  both  sides  of  that 
line,  that  it  could  not  be  determined  upon  which  side  of  the  line  the 
tree  was  originally  planted ;  as  was  the  case  in  Holder  v.  Coates,  1 
Moody  &  Malkin,  112.  Different  opinions  have  been  held,  as  to  the 
rights  of  the  owner  of  adjoining  estates  in  trees  planted,  and  the 
bodies  of  which  are  wholly  upon  one,  while  the  roots  extend  and 
grow  into  the  other;  some  holding  that,  in  such  cases,  the  tree,  by 
reason  of  the  nourishment  derived  from  both  estates,  becomes  the 
joint  property  of  the  owners  of  such  estates.  Watermanv.  Soper,  1 
Ld.  Raym.  737;  Griffin  v.  Bixby,  12  N.  H.  454;  2  Bouv.  Inst.  158; 
while  others,  with  better  reasons,  as  it  seems  to  me,  hold  that  the 
tree  is  wholly  the  property  of  him  upon  whose  land  the  trunk  stands. 
Holder  v.  Coates,  supra;  Lyman  v.  Hale,  11  Con.  177;  Masters  v. 
Pollic,  2  Roll.  R.  141;  Crabbe  on  Real  Property,  sec.  96.  The  same 
reasons,  and  the  proprietorship  of  the  soil,  would  give  to  the  owner 
of  the  estate  that  part  of  the  trunk  of  a  tree  which  was  upon  or  over 
his  land,  when  the  trunk  was  divided  by  the  line  separating  the 
estates.  The  ownership  of  the  soil  would  be  several,  in  the  proprie- 
tors of  the  two  estates,  while  the  tree,  standing  and  growing  partly 
upon  the  soil  of  each,  not  capable,  as  an  entire  thing  of  several 
ownership  by  the  two,  would  be  the  property  of  the  two  in  common, 
and  as  tenants  in  common.  If  a  tree  grows  in  a  hedge,  that  divides 
the  land  of  A.  and  B.,  and  by  its  roots  takes  nourishment  in  the 
land  of  both,  they  are  tenants  in  common.  Anon,  2  Roll.  255; 
Crabbe 's  Law  of  Real  Property,  supra. 

The  same  difficulty  and  conflict  of  opinions  upon  this  branch  of 
the  law  has  also  existed  in  the  civil  law,  and  in  France  the  difficulty 
has  been  avoided  by  legislation,  and  boundary  hedges,  and  the  trees 


IV.  i.]  FRUCTUS  NATURALES:  TREES.  169 

in  them,  are  declared  to  be  common  property  of  the  owners  of  the 
two  estates.  Note  to  Holder  v.  Coates,  22  E.  C.  L.  R.  265.  So  long 
as  neither  can  make  title  upon  any  principles  of  right  known  to  the 
law,  to  the  exclusion  of  the  other,  a  common  property  necessarily 
exists  in  both,  and  the  rule  of  the  French  code  is  but  the  rule  of  the 
common  law  resulting  from  the  principle  which  gives  to  the  owner 
of  the  soil  an  exclusive  right  to  an  indefinite  extent  upward  and 
downward,  and  which  makes  trees  and  bushes,  growing  and  being 
upon  land,  a  part  of  the  land  itself.  Trees  thus  standing  upon  the 
boundary  line,  as  mete-stones  or  monuments  set  up  for  marking  the 
boundary  line,  are  not  like  party  walls  erected  with  reference  to 
the  usual  occupation  of  adjacent  premises.  The  wall  is  erected  for 
the  use  of  each,  and  each  may  use  it,  and  each  owns  that  which  is  on 
his  own  premises,  but  there  is  no  tenancy  in  common.  Matts  v. 
Hawkins,  5  Taunt.  20.  This  case  was,  however,  decided  under  the 
party-wall  act  of  14  Geo.  III.,  c.  78,  and  it  would  seem  that  but  for 
such  act  the  presumption  would  be  that  the  wall  and  the  land  on 
which  it  stands  belong  to  the  owners  of  the  adjoining  lands  in  equal 
moieties  as  tenants  in  common.      Cubitt  v.  Porter,  8  B.  &  C.  257. 

Ordinarily,  trespass  will  not  lie  by  one  tenant  in  common  against  his 
oo-tenant,  but  when  one  tenant  in  common  ousts  his  co-tenant, 
ejectment  will  lie  at  the  suit  of  the  latter;  and  when  one  tenant  in 
common  destroys  the  subject  of  the  tenancy,  trespass  will  lie  at  the 
suit  of  the  injured  party.  Co.  Litt.  200a,  200b;  Crabbe's  Law  of  Real 
Property,  sec.  2318b;  Waterman  v.  Soper,  supra.  If  one  tenant  in 
common  destroy  the  thing  in  common,  as  if  he  grub  up  and  destroy 
a  hedge  or  prevent  his  co-tenants  of  a  folding  erecting  hurdles,  tres- 
pass lies.  Browne  on  Actions,  414;  Voyce  v.  Voyce,  Gow.  201;  Cubitt 
v.  Porter,  supra.  If  one  tenant  in  common  enter  upon  his  co-tenant 
and  oust  him  of  his  premise^,  trespass  quare  clausum  f regit  lies  for 
the  injury.  Erwin  v.  Olmsted,  7  Cow.  229.  Here  there  was  a  total 
destruction  of  the  trees,  and  the  plaintiff  had  his  remedy  by  action 
for  the  wrong  done.  If  the  parties  were  not  tenants  in  common, 
the  defendant  was  clearly  a  trespasser  in  cutting  and  carrying  off 
that  portion  which  belonged  to  the  plaintiff  in  realty  as  being  upon 
his  land. 

The  judgment  must  be  affirmed. 


\ 

V* NA*'  — \S>Nv  1 


170      CONSTITUENTS   AND    INCIDENTS   TO    LAND.       [PT.  II.  CH.  II. 

BRACKETT  v.  GODDARD. 

54  Maine,  309.  —  1866. 

Appleton,  C.  J.  —  This  is  an  action  brought  to  recover  the  price 
of  certain  logs  sold  by  the  defendant  to  the  plaintiff.  The  claim  is 
based  upon  an  alleged  failure  of  the  defendant's  title. 

The  defendant,  while  owning  a  lot  of  land  in  Hermon,  cut  down 
a  quantity  of  hemlock  trees  thereon.  After  peeling  the  bark  there- 
from and  hauling  it  off  the  land,  he  conveyed  the  lot  to  one  Works, 
by  deed  of  warranty,  without  any  reservation  whatever.  At  the  date 
of  this  deed,  the  hemlock  trees  in  controversy  were  lying  on  the  lot 
where  they  had  been  cut,  with  the  tops  remaining  thereon. 

The  defendant,  after  his  deed  of  the  land  to  Works,  conveyed  the 
hemlocks  cut  by  him  to  the  plaintiff.  Works,  the  grantee  of  the 
defendant,  claimed  the  same  by  virtue  of  his  deed.  The  question 
presented  is  whether  the  title  to  the  logs  is  in  the  plaintiff  or  in 
Works. 

Manure  made  upon  a  farm  is  personal  property  and  may  be 
seized  and  sold  on  execution.  Staples  v.  Emery,  7  Greenl.  301.  So, 
wheat  or  corn  growing  is  a  chattel  and  may  be  sold  on  execution. 
Whipple  v.  Foot,  2  Johns.  419.  Yet  it  is  held  that  growing  crops  and 
manure,  lying  upon  the  land,  pass  to  the  vendee  of  the  land,  if  not 
excepted  in  the  deed.  2  Kent,  346,  or  by  statute,  as  in  this  State 
by  R.  S.  c.  81,  sec.  6,  clause  6.  Fencing  materials  on  a  farm,  which 
have  been  used  as  a  part  of  the  fences,  but  are  temporarily  detached, 
without  any  intent  of  diverting  them  from  their  use,  as  such,  are  a 
part  of  the  freehold,  and  pass  by  a  conveyance  of  the  farm  to  a  pur- 
chaser. Goodrich  v.  Jones,  2  Hill,  142.  Hop  poles,  used  necessarily 
in  cultivating  hops,  which  were  taken  down  for  the  purpose  of 
gathering  the  crop  and  piled  in  the  yard,  with  the  intention  of  being 
replaced  in  the  season  of  hop  raising,  are  part  of  the  real  estate. 
Bishop  v.  Bishop,  1  Kenan,  123. 

Timber  trees,  if  blown  down,  or  severed  by  a  stranger,  pass  by  a 
deed  of  the  land.  "We  think  that  it  cannot  admit  of  a  doubt," 
remarks  Richardson,  C.  J.,  in  Kittredge  v.  Wood,  3  N.  H.  503,  "  that 
trees  felled  and  left  upon  the  land,  fruit  upon  trees,  or  fallen  and 
left  under  the  trees  where  it  grew,  and  stones  lying  upon  the  earth, 
go  with  the  land,  if  there  be  no  reservation."  The  hemlock  trees 
were  lying  upon  the  ground.  The  tops  and  branches  were  remain- 
ing upon  them.  They  were  not  excepted  from  the  defendant's  deed, 
and,  being  in  an  unmanufactured  state,  they  must,  from  analogy  to 
the  instances  already  cited,  pass  with  the  land.  Such,  too,  is  the 
statute  of   1867,  c.  88,  defining   the  ownership  of  down  timber.     It 


IV.   i.]     FKUCTUS  NATURALES:    BUSHES  AND  SMALL  FRUITS.      171 

would   have  been   otherwise,  had   they  been  cut  into  logs  or  hewed 
into  timber.      Cook  v.   Whitney,  16  111.  481. 

The  defendant,  at  the  plaintiff's  request,  traveled  from  another 
State,  as  a  witness,  to  testify  for  him  in  his  suit  against  Works.  He 
claims  to  have  his  fees  allowed  in  set-off  in  this  suit.  His  account 
in  set-off  was  regularly  filed.  He  is  entitled  to  compensation  there- 
for, which,  as  claimed,  will  be  travel  from  his  then  place  of  residence, 
and  attendance,  in  accordance  with  the  fees  established  by  statute. 

Offset  allowed. 


(2.)  Bushes  and  Small  Fruits. 

SPARROW  v.  POND. 

49  Minnesota,  412.  —  1892, 

Sparrow,  in  1886,  recovered  a  judgment  against  Pond  and  others. 
Pond  owned  land,  a  part  of  which  was  planted  to  blackberries. 
The  bushes  were  cultivated  and  cared  for  in  the  usual  way.  In  1891, 
Pond  was  about  to  gather  the  berries,  when  the  sheriff  made  a  levy 
upon  them  under  execution  on  Sparrow's  judgment.  The  crop  was 
sold  to  plaintiff  on  the  execution.  Pond  prevented  the  plaintiff  from 
taking  the  berries,  and  Sparrow  brings  this  action  in  replevin. 
Verdict  and  judgment  for  defendant.      Plaintiff  appeals. 

Mitchell,  J.  —  At  common  law  those  products  of  the  earth  which 
are  annual,  and  are  raised  by  yearly  manurance  and  labor,  and 
essentially  owe  their  annual  existence  to  the  cultivation  by  man, 
termed  "emblements,"  and  sometimes  "fntctus  industriales"  were, 
even  while  still  annexed  to  the  soil,  treated  as  chattels  with  the 
usual  incidents  thereof  as  to  seizure  on  attachment  during  the 
owner's  life,  and  transmission  after  death. 

This  class  included  grain,  garden  vegetables,  and  the  like.  On 
the  other  hand,  the  fruit  of  trees,  perennial  bushes,  and  grasses 
growing  from  perennial  roots,  and  called,  by  way  of  contradistinc- 
tion, "fructus  /uzturales,"  were,  while  unsevered  from  the  soil,  con- 
sidered as  pertaining  to  the  realty,  and  as  such  passed  to  the  heir  at 
the  death  of  the  owner,  and  were  not  subject  to  attachment  during 
his  life.  4  Kent,  Coram,  p.  *73;  4  Bac.  Abr.  372,  tit.  "  Emble- 
ments; "  Freem.  Ex'ns,  sec.  113;  1  Schouler,  Pers.  Prop.,  sec.  100 
et  seq.  ;  State  v.  Gemmill,  1  Houst.  9 ;  Craddock  v.  Riddlesbarger,  2 
Dana,  205;  4  Amer.  &  Eng.  Enc.  Law,  tit,  "Crops;"  Rodwell v. 
Phillips,  9  Mees.  &  W.  501. 

A  possible  exception  to  this  classification  is  the  case  of  hops  on 


172      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

the  vines,  which  have  been  held  to  be  personal  chattels,  and  subject 
to  sale  as  such.  The  ground  upon  which  this  seems  to  be  held  is 
that,  although  the  roots  of  hops  are  perennial,  the  vines  die  yearly, 
and  the  crop  from  the  new  vines  is  wholly  or  mainly  dependent 
upon  annual  cultivation.  The  decisions  upon  that  question,  how- 
ever, seem  to  be  all  based  upon  the  old  case  of  Latham  v.  Atwood, 
Cro.  Car.  515.      See  Frank  v.  Harrington,  36  Barb.  415. 

It  is  sometimes  stated  that  the  test  whether  the  unsevered  product 
of  the  soil  is  an  emblement,  and,  as  such,  personal  property,  is 
whether  it  is  produced  chiefly  by  the  manurance  and  industry  of  the 
owner.  But,  while  this  test  is  correct  as  far  as  it  goes,  it  is  incom- 
plete. Under  modern  improved  methods,  all  fruits  are  cultivated, 
the  quality  and  quantity  of  the  yield  depending  more  or  less  upon 
the  annual  expenditure  of  labor  upon  the  trees,  bushes,  or  vines; 
but  it  has  never  been  held  that  fruit  growing  upon  cultivated  trees 
was  subject  to  levy  as  personal  property.  No  doubt  all  emblements 
are  produced  by  the  manurance  and  labor  of  the  owner,  and  are 
called  "fructus  industriales"  for  that  reason;  but  the  manner,  as  well 
as  purpose,  of  planting  is  an  essential  element  to  be  taken  into  con- 
sideration. If  the  purpose  of  planting  is  not  the  permanent  enhance- 
ment of  the  land  itself,  but  merely  to  secure  a  single  crop,  which  is 
to  be  the  sole  return  for  the  labor  expended,  the  product  would 
naturally  fall  under  the  head  of  "  emblements."  On  the  other  hand, 
if  the  tree,  bush,  or  vine  is  one  which  requires  to  be  planted  but 
once,  and  will  then  bear  successive  crops  for  years,  the  planting 
would  be  naturally  calculated  to  permanently  enhance  the  value  of 
the  land  itself,  and  the  product  of  any  one  year  could  not  be  said  to 
essentially  owe  its  existence  to  labor  expended  during  that  year; 
and  hence  it  would  be  classed  among  "fructus  natura/es,"  and  the 
right  of  emblements  would  not  attach.      Darlington,  Pers.  Prop.  26. 

This  classification  is,  of  course,  more  or  less  arbitrary,  but  it  is 
the  one  uniformly  adopted  by  the  courts  (unless  hops  be  an  excep- 
tion), and  it  is  the  only  one  which  will  furnish  a  definite  and  exact 
rule.  Blackberry  bushes  are  perennial,  and  when  planted  once  yield 
successive  crops.  They  grow  wild,  but,  like  every  other  kind  of 
fruit  or  berry,  are  improved  by  cultivation.  The  quantity  and 
quality  of  the  yield  is  largely  dependent  upon  the  amount  of  annual 
care  expended  upon  them,  but  the  difference  in  that  respect  between 
them  ami  other  fruits  is  only  one  of  degree. 

It  seems  t"  us  quite  clear  that  at  common  law  such  berries,  while 
growing  upon  the  bushes,  were  not  subject  to  levy  on  execution  as 
personal  property,  and  we  have  no  statute  changing  the  rule.  Evi- 
dently the  main  purpose  of   1878,  (1.  S.  ch.  66,  sec.  315,  was,  while 


IV.   i.]  FRUCTUS   NATURALES:    GRASSES.  173 

permitting  immature  growing  crops  to  be  levied  on,  to  prohibit  their 
sale  until  they  were  ripe  and  fit  to  be  harvested. 

The  word  "  crops  "  had,  long  before  this  statute,  acquired  in  law 
a  meaning  synonymous  with  or  equivalent  to  the  common-law  term 
"  emblements,"  and  neither  of  them  included  fruits  or  perennial 
trees  or  shrubs,  and  it  is  to  be  presumed  that  the  term  "  crops  "  is 
used  in  the  statute  in  this  same  sense.  The  only  change  effected  by 
the  statute  as  to  the  kinds  of  products  of  the  earth  which  may  be 
levied  on  while  still  attached  to  the  soil  is,  perhaps,  to  include 
perennial  grasses.  As  we  are  of  opinion  that  these  berries,  while 
growing  on  the  bushes,  were  not  subject  to  levy  as  personal  prop- 
erty, it  becomes  unnecessary  to  consider  any  other  question  in  the 
case. 

To  prevent  misapprehension  hereafter,  it  may  be  well,  however, 
to  say,  with  reference  to  the  question  whether  crops  growing  upon 
a  homestead  under  the  statutes  of  this  State  are  subject  to  levy,  or 
whether  their  seizure  would  be  an  interference  with  the  beneficial 
use  and  control  of  the  homestead  by  the  debtor,  that  it  is  not 
determined,  as  counsel  for  appellant  assumes,  by  the  case  of  Erick- 
son  v.  Paterson,  47  Minn.  525,  50  N.  W.  Rep.  699.  In  that  case  the 
grain  grew  upon  land  entered  under  the  United  States  homestead 
law,  by  the  provisions  of  which  the  land  was  not  liable  for  debts 
contracted  prior  to  the  issuing  of  the  patent,  the  exemption  not  being 
at  all  dependent  upon  occupancy  and  use  as  a  home. 

Hence,  that  case  would  not  necessarily  control  the  question  dis- 
cussed in  the  present  case. 

Judgment  affirmed. 


(3.)  Grasses. 

IN  RE  CHAMBERLAIN. 

140  New  York,  390.  —  1893. 


Andrew,  Ch.  J.  — We  think  the  surrogate  erred  in  charging  the 
executrix  with  the  sum  of  $173.29,  the  amount  received  by  her  for 
hay  grown  upon  the  farm  in  1889.  The  testator  died  in  June  of  that 
year,  and  the  tenant  of  the  farm,  who  worked  it  upon  shares,  cut 
the  grass  thereafter  and  paid  over  to  the  executrix  that  sum  as  her 
share  of  the  proceeds  of  the  hay  under  the  agreement  with  the 
testator.  The  executrix  was  devisee  for  life  of  the  farm.  Growing 
grass  partakes  of  the  nature  of  realty.  Neither  at  common  law  nor 
under  our  statute  does  it  go  as  assets  to  the  executor  or  administra- 
tor, but  follows  the  land  and  belongs  to  the  heir  or  devisee.     Evans 

■ 


- 

1/4      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  IK  CH.  II. 

v.  Roberts,  5  B.  &  C.  820;  Kaine  v.  Fisher,  6  N.  Y.  597;  2  Rev.  St. 
82,  sec.  6,  sub.  6.1  On  the  other  hand,  corn  and  other  annual  crops 
produced  by  care  and  cultivation,  and  not  growing  spontaneously, 
are  at  common  law,  as  between  heir  and  executor  or  administrator, 
treated  as  chattels,  and  under  our  statute  are  assets  for  the  payment 
of  debts  even  as  against  the  devisee.  Williams  on  Ex'rs,  vol.  1,  p. 
70;   2  Rev.  St.  82,  sec.  6,  sub.  5;   State  v.  Wilbur,  77  N.  Y.  158. 

It  must  be  assumed,  in  the  absence  of  evidence,  that  the  executrix 
took  the  proceeds  of  the  hay  in  the  character  of  iife  tenant  and  not 
as  executrix.  There  was  no  change  in  the  legal  character  of  the 
grass  by  any  act  or  contract  of  the  testator  in  his  lifetime.  His 
share  in  the  proceeds  of  the  grass  was  in  the  nature  of  rent  reserved, 
which  accrued  after  the  testator's  death.  The  decree  should,  there- 
fore, be  modified  by  deducting  from  the  amount  charged  against  the 
executors  the  sum  of  $173.29,  and  any  interest  which  may  have  been 
allowed  thereon.     *     *     * 

The  judgment  below  should  be  modified  in  conformity  with  this 
opinion  and  as  modified  affirmed,  without  costs  to  either  party. 

Judgment  accordingly. 


b.   Effect  on  fructus  naturales  of  sale,  devise,  or  mortgage  of  the  land. 

(1.)  In  General. 

COCKRILL  v.  DOWNEY. 
4  Kansas,  426.  —  1868. 

By  the  Court,  Bailey,  J.  —  This  was  an  action  for  trespass,  com- 
menced before  Alonzo  Cottrell,  J.  P.,  by  plaintiff  in  error,  against 
defendant  in  error,  to  recover  the  value  of  three  loads  of  wood, 
hauled  from  the  land  of  the  plaintiff  in  error,  by  the  defendant  in 
error,  claiming  triple  damages  under  the  provisions  of  ch.  208  of  the 
Comp.  L.  The  action  was  commenced  on  the  28th  day  of  Decem- 
ber, 1866,  and  after  several  continuances,  was  tried  by  a  jury,  who 
found  a  verdict  for  the  plaintiff.  The  defendant  appealed,  and  the 
cause  was  again  tried  at  the  April  term  of  the  District  Court  of 
Marshall  county,  1867,  and  judgment  rendered  for  the  defendant. 

The  plaintiff  in  error,  who  was  also  the  plaintiff  below,  now  brings 
the  case  to  this  court  to  procure  a  reversal  of  the  last  mentioned 
judgment. 

It  appears  from  the  bill  of  exceptions  that  the  defendant,  Downey, 
and  one  Abraham  Gossuck,  were  the  former  owners  of  the  land  on 

'See  ;'  2712,  X.  Y.  Code  Civ.  Procedure.  —  Ed. 


IV.  i.]        FRUCTUS  NATURALES:  IN  GENERAL.  1 75 

which  the  alleged  trespass  was  committed,  and  that  Gossuck  and 
wife  conveyed  all  their  interest  in  the  land  to  Caloni  Walworth,  by 
deed  dated  February  10th,  1865,  and  that  subsequently,  on  the  28th 
of  August,  1865,  defendant,  Downey,  conveyed  all  his  interest  in 
said  land  to  Walworth,  without  any  reservation  whatever,  and  that 
said  Walworth  conveyed  the  land  to  plaintiff  by  deed  of  warranty, 
without  reservation. 

Ou  the  trial,  the  defendant  filed  no  answer  to  plaintiff's  petition 
on  appeal,  but  offered  himself  as  a  witness  to  prove,  with  others, 
that  there  was  a  parol  reservation  of  the  dead  and  down  timber  in 
the  deed  from  Downey  to  Walworth,  and  also  in  the  deed  from  Wal- 
worth to  plaintiff,  Cockrill.  Objection  was  made  to  this  evidence, 
but  the  objection  was  overruled  by  the  court,  and  the  evidence 
admitted.  We  think  the  court  erred  in  admitting  the  evidence.  The 
policy  of  our  laws,  as  evinced  by  the  whole  tenor  of  the  legislation 
as  to  registration  of  deeds  and  the  like,  is  to  make  titles  to  real 
estate  depend  upon  the  written  deeds  of  the  parties,  leaving  the 
smallest  possible  margin  for  parol  contracts,  understandings  and 
reservations. 

A  deed  of  land  must  be,  we  think,  deemed  to  involve  all  timber 
standing  or  growing  on  it,  unless  specially  excepted.  As  to  trees 
standing  and  growing  in  the  soil,  we  apprehend  that  no  question 
would  be  made;  but  a  tree  maybe  standing  and  not  growing,  or 
growing  in  a  horizontal  position,  not  standing. 

Must  the  law  apply  a  different  rule  in  each  case?  Suppose  the  case 
of  trees  prostrated  by  a  tornado,  but  with  roots  still  adhering  to  the 
soil;  shall  they  pass  by  the  deed,  or  be  reserved  by  parol?  Obvi- 
ously, such  trees  must  be  considered  as  part  of  the  realty,  and  we 
think  that  there  can  be  no  safer  general  rule,  than  that  founded  on 
the  old  maxim,  "Cujus  est  solum  ejus  est  usque  ad ccelum"  which  may, 
perhaps,  be  liberally  translated,  "  The  owner  of  the  soil  owns  from 
the  center  of  the  earth  up  to  the  sky."  Various  qualifications  and 
limitations  have  been  established  as  to  fixtures,  emblements,  and  the 
like;  but  we  find  no  judicial  warrant  or  authority  for  the  claims  of 
the  defendant  in  this  case. 

The  judgment  must  be  reversed,  and  the  case  remanded  for  a  new 
trial. 


176       CONSTITUENTS   AND    INCIDENTS    OF    LAND.  .    [PT.  II.  CH.  II. 
■ 
BRADY  v.  WALDRON. 

2  Johnson's  Chancery  (N.  Y.),  148.  —  1816. 

Bill  filed  by  the  plaintiff,  a  mortgagee,  for  an  injunction  to  stay 
waste  in  cutting  timber  on  the  mortgaged  premises,  whereby  the  land 
would  become  an  insufficient  security  for  the  debt.  There  was  no 
suit  pending  for  a  foreclosure. 

The  Chancellor  —  An  injunction  lies  against  a  mortgagor  in 
possession  to  stay  waste.  The  court  will  not  suffer  him  to  prejudice 
the  security.     Dick.  75;  3  Atk.  210,  237,  3  Ves.  105. 

Injunction  granted. 


(2.)  How  Exceptions  or  Reservations    Must  be  Made.     Their  Effect. 

COCKRILL  v.  DOWNEY. 

4  Kansas,  426.  —  1868. 

[Reported  herein  at  p.  174.] 


CLAP  v.  DRAPER. 

4  Massachusetts,  266.  —  1808. 

Parsons,  C.  J.  [After  stating  the  action  and  reciting  the  substance 
of  the  special  verdict.]  — The  two  deeds  in  this  case,  executed  on 
the  same  day,  the  latter  referring  to  the  former,  and  relating  to  the 
same  transaction,  must  be  considered  as  intended  to  effect  the  same 
contract,  and  must  be  construed  together.  The  result  of  this  joint 
construction  is,  that  the  grantor  conveyed  the  close  to  the  grantee 
in  fee,  reserving  to  himself  an  inheritance  in  the  trees  and  timber, 
not  only  then  growing,  but  which  might  thereafter  be  growing  in 
the  close.  This  is  the  natural  effect  of  the  grantee's  agreement  that 
the  grantor  and  his  heirs  should  have  all  the  trees  and  timber  stand- 
ing and  growing  on  the  close  forever,  and  not  merely  those  then 
standing,  or  which  should  be  standing  within  a  limited  time;  and  of  a 
perpetual  license  to  cut  and  carry  them  away.  The  plaintiff  having 
all  the  estate-  in  the  trees,  timber  and  close,  which  the  grantor  had  after 

execution  of  these  two  deeds,  he  has  an  inheritance  in  the  trees 
and  timber,  with  an  exclusive  interest  in  the  soil  so  far  only  as  it 
may  be  necessary  for  the  support  and  nourishment   of    the   trees. 

>.  271;  Cro.  Jac.  487;   2  Roll.  Abr.  455,  20;    11  Co.  46. 


IV.   I.]  FRUCTUS   NATURALES:    EXCEPTIONS    IN   SALE.  177 

For  cutting  down  and  carrying  away  the  trees,  trespass  undoubtedly 
lies.      2  Leon.  213;  Hitchcock  v.  Harvey. 

But  the  defendant  insisted  that  the  plaintiff  could  not  maintain 
trespass  for  breaking  the  close.  Upon  looking  into  the  cases,  we 
are  satisfied  that  the  plaintiff,  having  an  inheritance  in  the  trees, 
and  an  exclusive  right  in  the  soil  of  the  close,  as  far  as  was  necessary 
for  their  support  and  nourishment,  may  maintain  trespass  for  break- 
ing the  close,  as  well  as  for  cutting.  It  appears  to  be  a  principle  of 
law  well  settled,  that  where  a  man  has  a  separate  interest  in  the  soil 
for  a  particular  use,  although  the  right  of  the  soil  is  not  in  him,  if 
he  be  injured  in  the  enjoyment  of  his  particular  use  of  the  soil,  he 
may  maintain  trespass  quare  clausum  f regit ;  but  not  if  his  interest 
is  in  common  with  others.  Thus,  this  action  lies  for  him  who  has 
the  herbage,  although  not  a  right  to  the  soil.  Moor.  355;  Hoe  v. 
Taylor,  —  Co.  Litt.  4b;  Dalison  47,  —  ;  Moor.  302,  —  ;  Cro.  Eliz. 
421.  But  if  he  is  entitled  to  a  portion  of  the  herbage  for  a  particu- 
lar part  of  the  year,  he  cannot  maintain  this  action,  but  may  main- 
tain an  action  of  trespass  for  spoiling  his  grass.  2  Leon.  213.  Vide 
also  Yelv.  187,  Dewclas  et  al.  v.  Kendall  et  al. 

The  latest  case  on  this  subject  is  the  case  of  Wilson  v.  Mackreth, 
3  Burr.  1824.  The  plaintiff  had  an  exclusive  right  to  take  the  turf 
in  a  several  parcel  of  ground,  in  which,  and  in  other  parcels  adjoin- 
ing, he  and  the  other  tenants  of  the  manor  had  common  of  pasture, 
the  right  of  the  soil  being  in  the  lord  of  the  manor.  The  defendant 
dug  and  carried  away  peats  in  the  place  in  question,  and  it  was  held 
that  the  plaintiff  might  maintain  trespass  quare  clausum  /regit  against 
him.  And  the  difference  there  taken  is  between  exclusive  rights  and 
rights  in  common;  that  if  the  plaintiff  had  only  a  common  of  turbary, 
trespass  would  not  lie. 

Upon  the  authority  of  this  case,  as  well  as  the  reasonableness  of 
the  principle,  in  the  plaintiff,  in  consequence  of  his  inheritance  in 
the  trees  had  such  an  interest  in,  although  not  the  right  of  soil,  that 
he  may  maintain  trespass  quare  clausum  /regit  in  this  case,  and  must 
have  judgment  on  the  special  verdict. 


SALTONSTALL  v.  LITTLE. 
90  Pennsylvania  State,  422.  —  1879. 

Ejectment  by  Little,  as  executor  of  Kingsbury,  against  defendants 
as  trustees,  succeeding  to  the  interest  of  Veazie. 

Kingsbury,  in  1859,  sold  to  one  Hyde  certain  standing  timber  to 
be  taken  off  within  twelve  years.      A  few  days  later  he  deeded  the 

LAW  OF  PROP.    IN  LAND — 12 


178      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CM.  II. 

land  to  Veazie,  reserving  said  timber  with  the  right  to  take  it  off 
within  twelve  years  from  date  of  deed. 

It  was  agreed  at  the  hearing  below  that  if  the  court  should  be  of 
opinion  that  the  property  in  said  pine  timber,  remained  in  Kings- 
bury, his  heirs,  etc.,  after  the  expiration  of  the  term  of  twelve  years, 
limited  in  the  deed,  then  there  should  be  judgment  for  the  plaintiff, 
but  if  the  court  be  of  opinion,  that  after  the  expiration  of  said  term 
the  property  passed  to  Veazie  and  his  assigns,  then  judgment 
should  be  entered  for  defendants. 

Judgment  for  plaintiffs.     Defendants  bring  writ  of  error. 

Paxton,  J. — Whether  we  regard  the  clause  in  controversy,  in 
the  deed  from  Kingsbury  to  Veazie,  as  a  reservation  or  an  excep- 
tion, the  result  is  the  same,  for  in  either  event  Kingsbury  or  his 
grantee  of  the  timber  was  restricted  to  twelve  years,  in  which  to  cut 
and  remove  it.  The  reservation  of  the  timber  was  not  an  absolute 
severance  of  it  from  the  freehold.  It  was  a  severance  only  upon  the 
condition  of  its  removal  within  twelve  years.  It  is  true  no  such 
express  condition  appears,  and  the  words,  proviso,  ita  quod  and  sub 
conditionc,  so  much  relied  upon  by  Lord  Coke,  are  not  to  be  found 
in  the  reservation.  But  conditions  may  be  implied  as  well  as 
expressed.  There  is  abundance  in  the  reservation  from  which  such 
a  condition  may  be  implied.  "  If  a  man  grant  all  his  trees  to  be 
taken  within  five  years,  the  grantee  cannot  take  any  after  the  expira- 
tion of  five  years,  for  this  is  in  the  nature  of  a  condition  annexed  to 
the  grant."  Bacon's  Abridgment,  tit.  Grant.  In  Bouttsv.  Mitchell, 
3  Harris,  371,  there  was  a  sale  of  the  land,  "  excepting  and  reserv- 
ing therefrom,  all  the  timber  that  is  suitable  for  rafting  and  sawing 
of  every  description."  In  that  case  no  time  was  limited  within 
which  the  timber  must  be  removed,  yet  it  was  held  that  "  the  grant 
was  in  its  very  nature  determinable;  the  right  to  cut  timber  was  not 
to  continue  forever  at  the  pleasure  of  the  grantee  and  his  assigns; 
and  if  from  the  destruction  of  the  trees,  the  subject  of  it,  or  the 
refusal  of  the  party  to  exercise  his  right  after  a  reasonable  notice  to 
do  so,  the  right  itself  is  determined;  the  privilege  of  entry  is  gone 
with  it,  and  the  owner  of  the  land  may  sue  for  breach  of  close, 
though  he  may  not  recover  in  damages  the  value  of  trees  taken,  the 
property  of  which  is  not  in  him."  In  the  case  in  hand,  the  parties 
have  fixed  the  time  during  which  the  trees  may  be  removed.  Had 
no  lime  been  limited,  the  law  would  have  allowed  a  reasonable  time 
in  order  that  the  grantor  might  not  be  defeated  of  his  reservation. 
Bi  t  he  would  have  been  compelled  to  remove  them  upon  reasonable 
notii  e,  Otherwise  the  reservation  would  have  been  a  perpetual  servi- 
tude, which    was   nol    contemplated  by  the  parties,  and  is  repugnant 


IV.   i.]  FRUCTUS   NATURALES:    SEPARATE   SALE.  1 79 

to  the  grant.  Having  fixed  their  own  time  for  the  removal  of  the 
timber,  it  is  too  clear  for  argument,  that  the  right  of  entry  falls  with 
its  expiration.  It  was  contended,  however,  that  even  if  the  right  of 
entry  is  gone,  the  right  of  property  in  the  trees  remains,  and  the 
case  stated  was  evidently  framed  to  meet  this  possibility.  It  would 
certainly  be  a  barren  right  to  own  trees  upon  another's  land,  with 
no  right  of  entry  to  take  them  away.  The  plaintiffs  have  no  such 
property  in  the  timber.  The  limitation  upon  the  right  of  entry  was 
a  limitation  upon  the  exception  itself.  It  was  a  reservation  of  the 
timber  for  twelve  years  and  no  longer.  After  that  time,  the  trees 
remaining  passed  with  the  grant  of  the  soil  to  which  they  were 
attached.  This  is  the  construction  placed  upon  such  agreements  in 
the  lumber  regions  where  they  are  frequent,  and  it  accords  with 
reason  and  common  sense.  We  made  a  somewhat  similar  ruling 
in  Leconte  v.  Rover,  decided  in  1877. 

It  also  appears  by  the  case  stated,  that  Kingsbury  sold  the  timber 
in  question,  to  one  Joseph  S.  Hyde,  twenty-six  days  before  his  deed 
to  Veazie,  with  the  right  to  take  it  off  for  twelve  years  from  the  date 
of  the  sale.  Whatever  the  rights  of  the  defendants  may  be,  the 
plaintiffs,  by  their  own  showing  have  none. 

The  judgment  is  reversed,  and  judgment  on  the  case  stated  for 
the  defendant. 


C.   Separate  sale  or  mortgage  of  fructus  naturales  —  how  made. 

(1.)  The  General  Rule. 

HIRTH  v.  GRAHAM.1 

50  Ohio  State,  57.  —  1893. 

{Reported  herein  at  p.  34.] 


KILLMORE  v.  HOWLETT. 

48  New  York,  569.  —  1872. 

Action  for  damages  for  breach  of  a  parol  contract  by  which 
defendant  agreed  to  cut  the  trees  then  standing  and  growing  on  his 
lot  into  cord-wood  and  deliver  the  same  to  plaintiff  at  his  wood  yard. 

Judgment  for  plaintiff.      Defendant  appeals. 

Gray,  C.  — If  the  standing  trees  upon  the  lot,  which  by  the  con- 
tract were  to  have  been  cut  by  the  defendant  and  made  into  cord- 

1  See  also  Green  v.  Armstrong,  1  Den.,  550,  reported  supra,  p.  38. 


ISO      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

wood,  and  delivered  by  him  to  the  plaintiff  at  Syracuse,. had,  instead 
of  the  wood  to  be  made  therefrom,  been  sold  in  their  standing  con- 
dition, "  rooted  in  the  soil,"  the  right  of  the  plaintiff  to  enter  and 
fell  them,  and  make  them  into  wood,  would  have  been  a  sale  of  an 
interest  in  the  land,  and  without  being  evidenced  by  writing  would 
have  been  void.  Green  v.  Armstrong,  i  Denio,  550,  553,  et  seq.  This 
was  not  a  sale  of  the  trees  in  their  standing  condition,  but  rather  a 
contract  by  the  defendant  to  bestow  work  and  labor  upon  his  own 
material,  and  deliver  it  in  its  improved  condition  to  the  plaintiff.  In 
a  similar  case,  Littledale,  J.,  in  Smith  v.  Sumam,  9  B.  &  C.  561,  566, 
held  it  not  to  be  the  intention  to  give  the  vendee  any  property  in 
the  trees  until  they  were  severed  from  the  freehold.  Apply  the  rule 
contended  for  by  the  defendant,  and  a  writing  would  be  indispensa- 
ble to  the  validity  of  a  contract  by  the  owner  of  a  peat  bed  or  a  sand- 
bank to  deliver  a  load  from  it.  Such  contracts  are  never  regarded 
as  carrying  an  interest  in  the  real  estate  from  which  the  thing  sold 
was  to  be  taken  by  the  owner.     The  judgment  should   be  affirmed. 

Judgment  affirmed. 


(2.)  The  Kentucky  Doctrine. 

BYASSEE  v.  REESE. 
4  Met.  (Ky.),  372. —  1863. 

Bullitt,  J.  — Byassee  filed  a  petition  alleging  that  he  had  pur- 
chased from  one  Head,  agent  of  one  Walters,  100  trees  standing  upon 
land  belonging  to  said  Walters;  that  he  was  to  have  choice  of  the 
trees  standing  upon  said  land,  and  selected  and  marked  100  trees 
which  said  Head  agreed  he  should  have;  and  that  Reese,  with 
knowledge  of  plaintiff's  right  thereto,  was  cutting  them  down,  and 
converting  them  to  his  own  use;  and  praying  that  he  might  be 
enjoined  from  doing  so,  and  for  damages  for  those  that  had  been 
converted. 

Reese  did  not  controvert  any  of  those  allegations  in  the  manner 
required  by  the  Code  of  Practice,  (section  125,)  except  the  allega- 
tion, that  he  had  cut  any  of  the  trees  marked  by  the  plaintiff;  but  it 
was  proved  that  he  had  cut  some  of  them,  and  in  his  answer  he 
claimed  the  right  to  cut  them  all;  averring  that  the  land  had  been 
decreed  \>>  Mrs.  Walters  by  the  Louisville  chancery  court,  in  a 
divorce  suit,  that  she  had  sold  it  to  Moss,  and  that  Moss  had  sold  it 
to  defendant.  But  these  averments  were  not  sustained  by  any 
c  v  i  1 1  e 

B    issee  appeals  from  a  judgment  dismissing  his  petition. 


IV.   i.]  FRUCTUS    NATURALES:    SEPARATE   SALE.  l8l 

We  find  in  the  record  a  copy  of  a  paper  purporting  to  have  been 
signed  by  Head,  which  contains  written  evidence  of  said  sale  of 
trees,  but  we  cannot  consider  the  paper,  because  it  is  not  referred  to 
in  the  petition.  As  the  petition  does  not  aver  that  the  contract  was 
in  writing,  nor  refer  to  any  writing,  we  must  assume  that  it  was  a 
verbal  contract.      15  B.  Mon.  443;  3  Met.  474. 

The  first  question  is,  whether  or  not  a  sale  of  standing  trees  is 
embraced  by  that  provision  of  the  statute  of  frauds  which  relates  to 
contracts  for  the  sale  of  land.  This  question  has  produced  some 
conflict  of  opinion.  But,  according  to  the  weight  of  authority,  a 
sale  of  standing  trees,  in  contemplation  of  their  immediate  separa- 
tion from  the  soil,  by  either  the  vendor  or  the  vendee,  is  a  construc- 
tive severance  of  them,  and  they  pass  as  chattels,  and,  consequently, 
the  contract  of  sale  is  not  embraced  by  the  statute.  Green,  Ev.,  sec. 
271.  And  such  is  the  ruling  of  this  court.  Cain  v.  McGuire,  13  B. 
Mon.  340. 

The  phrase,  "  in  contemplation  of  immediate  separation  from  the 
soil,"  is  used  to  distinguish  a  sale  of  standing  trees,  or  growing 
crops,  which  passes  no  interest  in  the  land,  except  a  license  to  enter 
upon  it  for  the  purpose  of  removing  them,  from  a  contract  conferring 
an  exclusive  right  to  the  land  for  a  time  for  the  purpose  of  making 
a  profit  out  of  the  growth  upon  it.     (See  authorities  above  cited.) 

The  case  under  consideration  clearly  belongs  to  the  former  class, 
though  it  does  not  appear  that  any  definite  time  was  fixed  for  the 
removal  of  the  trees. 

As  the  trees  were  sold  as  chattels,  the  selection  and  marking  of 
them  by  the  purchaser,  with  the  knowledge  and  consent  of  the  vendor, 
was  a  constructive  delivery,  and  the  title  vested  in  the  purchaser. 

But,  though  Byassee  may  be  entitled  to  the  trees,  as  against 
Walters,  yet,  if  Reese,  or  his  vendor,  acquired  title  to  the  land  by  a 
bona  fide  purchase,  for  a  valuable  consideration  paid,  before  he  had 
notice  of  Byassee's  right  to  the  trees,  Reese  is  entitled  to  them,  and 
Byassee  must  look  to  Walters  for  damages.  In  such  a  state  of  case, 
the  fact  that  Reese  had  notice  of  Byassee's  claim,  before  cutting  the 
trees,  would  be  immaterial.  But,  if  Reese. had  no  title  to  the  land, 
he  was  not  entitled  to  notice. 

Upon  the  return  of  the  cause  each  party  should  have  leave  to 
amend  his  pleadings. 

The  judgment  is  reversed,  and  the  cause  remanded  for  further 
proceedings  not  inconsistent  with  this  opinion.1 

1  See  also  Erskine  v.  Plummer,  7  Me.  447  (1831).  For  a  clear  statement  of  the 
rules  which  it  would  seem  should  control  the  decision  of  the  cases  now  under 
consideration  see  §•§  118  and  120,  Benjamin  on  Sales,  ed.  of  1S92.  —  Ed. 


182      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.  CH.  II. 

(3.)  The  Massachusetts  Doctrine.1 
DRAKE  v.  WELLS. 

11  Allen  (Mass.),  141.  —  1S65. 

Tort  in  the  nature  of  trespass  quare  clausum. 

The  standing  wood  and  timber  on  the  close  described  was  sold  at 
auction  to  the  defendant  who  was  to  have  a  certain  stated  time 
within  which  to  remove  the  same  from  the  land.  Later  on,  at  the 
same  auction,  the  land  itself  was  put  up  for  sale  and  sold  to  plaintiff. 
There  were  no  reservations  in  the  deed  of  the  land.  The  acts  of 
trespass  complained  of  consisted  in  cutting  off  the  trees  within  the 
time  limited  therefor. 

Bigelow,  C.  J.  — The  doctrine  is  now  well  settled  that  a  sale  of 
timber  or  other  product  of  the  soil,  which  is  to  be  severed  from  the 
freehold  by  the  vendee  under  a  special  license  to  enter  on  the  land 
for  that  purpose  is,  in  contemplation  of  the  parties,  a  sale  of  chattels 
only,  and  cannot  be  regarded  as  passing  an  interest  in  the  land,  and 
is  not  for  that  reason  required  to  be  in  writing  as  being  within  the 
statute  of  frauds.  Such  license  to  enter  on  the  land  of  another,  so 
far  as  it  is  executed,  is  irrevocable;  because,  by  the  severance  of  the 
timber  or  other  growth  of  the  soil  from  the  freehold,  in  execution  of 
the  license,  it  becomes  personal  property,  the  title  to  which  is  vested 
in  the  vendee  absolutely,  and  the  rule  applies  that  where  chattels 
belonging  to  one  person  are  placed  or  left  on  the  land  of  another, 
with  the  permission  or  assent  of  the  latter,  the  owner  of  the  chattels 
has  an  implied  irrevocable  license  to  enter  and  remove  them.  In 
such  case  the  owner  of  land  cannot,  by  withdrawing  his  assent  to 
enter  on  his  premises,  deprive  the  owner  of  chattels  of  his  property, 
or  prevent  him  from  regaining  possession  of  them.  The  law  will 
not  lend  its  aid  to  the  perpetration  of  a  fraud.  But  it  is  otherwise 
where  the  contract  has  not  been  executed  by  a  severance  of  the  sub- 
ject-matter of  a  contract  of  sale  from  the  freehold.  So  long  as  the 
timber  or  other  product  of  the  soil  continues  in  its  natural  condition, 
and  no  act  is  done  by  the  vendee  towards  its  separation  from  the 
soil,  no  property  or  title  passes  to  the  vendee.  The  whole  rests  in 
contract.  A  revocation  of  the  license  to  enter  on  the  land  does  not 
defeat  any  valid  title;  it  does  not  deprive  an  owner  of  chattels  of  his 
property  in  or  possession  of  them.  The  contract  being  still  execu- 
tory, no  title  has  passed  to  the  vendee,  and  the  refusal  of  the  vendor 
to  permit  the  vendee  to  enter  on  the  land  for  the  purpose  of  discon- 

'See  also  Purner  v.  Piercy,  40  Md.  212,  reported  supra,  p.  160.  —  En. 


IV.   i.]  FRUCTUS   NATURALES:    SEPARATE   SALE.  183 

necting  from  the  freehold  the  property  agreed  to  be  sold  is  only  a 
breach  of  contract,  the  remedy  for  which  is  an  action  for  damages, 
as  in  the  common  case  of  a  failure  or  refusal  to  deliver  ordinary 
chattels  in  pursuance  of  a  contract  of  sale. 

These  principles  have  been  recognized  and  established  as  the  law 
of  this  commonwealth  in  several  adjudicated  cases.  In  Clafiin  v. 
Carpenter,  4  Met.  580,  582,  it  was  held  that  a  contract  for  the  sale 
of  standing  wood  to  be  cut  and  severed  from  the  freehold  was  to  be 
construed  "  as  passing  an  interest  in  the  trees  when  they  are 
severed,"  and  that  a  license  to  enter  on  the  land  under  such  con- 
tract could  not  be  countermanded  after  it  had  been  acted  on.  So 
in  Nettleton  v.  Sikes,  8  Met.  34,  it  was  said  by  the  court  that  a  bene- 
ficial license  to  be  exercised  on  land,  when  acted  upon  under  valid 
contract  cannot  be  countermanded."  To  the  same  effect  are  Nelson 
v.  Nelson,  6  Gray,  385,  and  Douglas  v.  Shunnvay,  13  Gray,  498.  In 
these  cases  it  appeared  that  the  license  had  been  acted  on  by  the 
vendee,  who  had  entered  on  the  land  and  cut  the  timber  which  was 
the  subject  of  the  contract  of  sale,  and  had  thereby  acquired  a  title 
to  the  wood  as  personal  property.  In  Giles  v.  Simonds,  15  Gray, 
441,  a  case  was  presented  where  a  vendee  had  entered  on  land  under 
a  contract  of  sale  of  standing  wood,  and  had  cut  down  a  part  of 
those  which  were  agreed  to  be  sold,  when  he  was  forbidden  by  the 
vendor,  the  owner  of  the  land,  from  proceeding  any  further  in  the 
execution  of  the  contract,  and  also  from  removing  those  which  had 
been  severed  from  the  freehold.  He  nevertheless  did  go  on  the 
land  and  take  away  such  of  the  trees  as  had  been  previously  cut  down. 
It  was  held  that  the  vendor  had  a  right  to  terminate  the  contract 
and  revoke  the  license  as  to  the  trees  left  standing,  but  that  he  could 
not  do  so  as  to  those  which  had  been  already  cut,  and  that  an  action 
of  trespass  would  not  lie  for  entering  and  taking  away  the  latter. 
See  also  Burton  v.  Scherpf,  1  Allen,  135. 

The  application  of  the  principles  established  by  these  cases  is 
decisive  of  the  rights  of  the  parties  to  these  actions.  Taking  the 
most  favorable  view  of  these  cases  in  behalf  of  the  defendants,  they 
had  acquired  no  title  to  the  wood  standing  on  the  land  of  the 
plaintiff.  They  had  only  an  executory  contract  for  the  purchase  of 
the  trees  growing  on  the  premises,  with  a  license  from  the  plaintiff's 
grantor  to  enter  and  cut  and  remove  the  same.  This  license, 
not  having  been  acted  on,  was  revocable.  And  it  was  revoked  by 
the  deed  of  the  land  to  the  plaintiff  by  the  licensor,  by  which  it  was 
conveyed  absolutely  and  free  of  all  encumbrances  to  the  plaintiff. 
In  Cook  v.  Stearns,  11  Mass.  533,  538,  it  was  held  that  the  transfer 
of  land   to  another,  or  even  a  lease  of  it,  without  any  reservation, 


I84      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [l'T.  II.   CH.  II. 

would,  of  itself,  be  a  countermand  of  a  license.  Clearly  it  must  be 
so,  because  an  unqualified  grant  of  land  carries  with  it  the  title  to 
everything  which  is  part  of  the  realty  or  annexed  to  the  freehold, 
and  is  inconsistent  with  a  right  in  any  other  person  than  the  grantee 
to  enter  on  the  land  and  remove  therefrom  trees  growing  thereon  or 
other  products  of  the  soil.  Coleman  v.  Foster,  i  Hurlst.  &  Norm.  37. 
It  follows  that  the  ruling  of  the  court  was  erroneous  at  the  trial  of 
this  cause.  The  defendants  were  trespassers,  and  were  liable  to  the 
plaintiff  for  entering  her  close  and  cutting  and  removing  wood 
therefrom. 

Exceptions  sustained. 


WHITE  v.  FOSTER. 

102  Massachusetts,  375.  —  li 


Colt,  J.  —  By  the  deed  of  May  17,  1865,  the  demandant's  grantor 
conveyed  to  the  tenants  all  the  standing  timber  on  the  demanded 
premises,  with  a  proviso  that  it  should  be  removed  within  three 
years.  He  afterwards  mortgaged  the  land  by  a  deed  containing  a 
reservation  of  all  the  trees  growing  on  the  same,  describing  them  as 
having  been  sold  to  the  tenants,  and  then  conveyed  it,  July  1,  1867, 
to  the  demandant,  with  full  covenants  of  warranty,  excepting  only 
the  said  mortgage.  We  are  to  take  it  as  proved,  in  accordance  with 
the  tenant's  offer  of  evidence,  that  the  demandant  (White),  when  he 
took  his  deed,  had  actual  notice  of  the  previous  sale  of  the  trees  to 
them.  This  writ  of  entry  is  brought  before  the  expiration  of  the 
term  limited  for  the  removal  of  the  timber,  and  describes  the 
premises  in  the  usual  way,  by  metes  and  bound.  The  tenants  dis- 
claim any  title  except  that  which  they  have  under  the  deed  of  May  17. 

Upon  the  case  thus  presented,  we  are  of  opinion  that  the  title  of 
the  tenants  to  this  timber  may  be  maintained  according  to  the  honest 
intention  of  the  original  parties,  as  against  the  present  demandant, 
without  infringing  any  rule  of  law  necessary  for  the  security  of  title 
to  real  property.  It  is  to  be  distinguished  from  most  of  the  cases 
I,  in  the  important  fact  that  the  tenants  claim  under  a  deed,  con- 
taining apt  words  for  the  conveyance  of  an  interest  in  real  estate, 
which  was  duly  executed  and  delivered.  When  cases  have  arisen 
under  parol  or  simple  contracts  for  the  sale  of  growing  timber,  to  be 
cut  and  severed  from  the  freehold  by  the  vendee,  such  agreements, 
with  reference  to  the  statute  of  frauds,  and  in  order  to  give  effect 
em,  have  hem  construed  as  not  intended  by  the  parties  to  con- 
vey any  interest  in  land,  and  therefore  not  within  the  statute.      Such 


IV.   i.]  FRUCTUS   NATURALES:     SEPARATE    SALE.  185 

contracts  are  held  to  be  at  least  executory  contracts  for  the  sale  of 
chattels,  as  they  shall  be  thereafterwards  severed  from  the  real  estate, 
with  a  license  to  enter  on  the  land  for  the  purpose  of  removal. 
Claflin  v.  Carpenter,  4  Met.  583;  Giles  v.  Simonds,  15  Gray,  441; 
Drake  v.  Wells,  11  Allen,  141;  Delaney  v.  Root,  99  Mass.  546;  Spurr 
v.  Andrew,  6  Allen,  420;  Browne  on  St.  of  Frauds,  sees.  249,  251. 

Growing  timber  constitutes  a  part  of  the  realty,  is  parcel  of  the 
inheritance,  and,  like  any  other  part  of  the  estate,  may  be  separated 
from  the  rest  by  express  reservation  or  grant,  so  as  to  form  itself  a 
distinct  inheritance.  It  was  early  so  held  by  this  court  in  Clap  v. 
Draper,  4  Mass.  265,  and  trespass  by  the  grantee  of  such  an  estate 
against  the  owner  of  the  soil  was  maintained,  for  cutting  down  the 
trees.  See  also  Putnam  v.  Titttle,  10  Gray,  48.  When  so  separated 
and  made  a  distinct  estate,  it  has  the  incidents  of  real  property  so 
long  as  it  remains  uncut,  and  the  rules  which  govern  the  title  and 
transfer  of  such  property  must  apply.  It  is  like  property  in  mines 
and  minerals,  which  may  in  like  manner  be  separated  from  the  gen- 
eral ownership  of  the  soil,  and  become  distinct  estates  in  freehold, 
with  all  the  incidents  belonging  to  such  estates.  Adam  v.  Briggs 
Iron  Co.,  7  Cush.  367. 

It  may  be  difficult  in  many  cases  to  determine,  from  the  terms  of 
the  contract,  whether  the  parties  intend  to  grant  a  present  estate  in 
the  trees  while  growing,  or  only  a  right,  either  definite  or  unlimited 
as  to  time,  to  enter  and  cut,  with  a  title  to  the  property  when  it 
becomes  a  chattel.  If  the  former  be  the  true  construction,  then  it 
comes  within  the  statutes,  and  must  be  in  writing;  if  the  latter, 
then,  though  wholly  oral,  it  may  be  enforced. 

For  the  purpose  of  arriving  at  the  intention  of  the  parties,  the 
mode  in  which  the  contract  is  made,  whether  oral  or  written,  and,  if 
the  latter,  whether  under  seal  or  not,  must  be  regarded,  and  may  be 
decisive.  A  simple  oral  contract  for  the  sale  of  trees,  to  be  removed 
in  a  definite  time,  would  be  construed  as  not  intended  to  convey  an 
interest  in  the  land,  because  the  parties  must  have  known  that  such 
could  not  be  its  effects;  while  the  same  words,  if  incorporated  into 
the  granting  part  of  a  deed,  with  the  usual  clauses  and  formalities 
appropriate  to  a  conveyance  of  real  estate,  and  especially  if  full 
covenants  of  warranty  be  added,  will  be  held  to  convey  an  interest 
111  the  realty,  and  carry  a  present  title  in  the  property  to  the  grantee. 
So  a  permission  which,  if  oral,  would  only  amount  to  a  license  to  do 
an  act  or  series  of  acts  on  another's  land  without  possession  of  any 
estate  therein,  would,  if  put  in  the  form  of  an  agreement  under  seal, 
convey  a  permanent  incorporeal  right  or  easement;  and  that,  simply 
because   the   latter   is   the   appropriate   mode   of    creating    such   an 


186      CONSTITUENTS    AND    INCIDENTS    OF    LAND.      [PT.  II.  CH.  II. 

estate.  It  is  not  true,  therefore,  as  claimed  by  the  demandant,  that, 
if  the  contract  is  in  writing  and  under  seal,  no  other  or  greater 
interest  passes  than  would  pass  by  the  use  of  the  same  language  in 
an  oral  sale.  The  subject-matter  of  the  contract  is  the  same  in  both, 
but  the  contracts  themselves  may  receive  a  different  interpretation. 

The  deed  under  which  the  tenants  claim,  thus  interpreted,  with- 
out doubt  conveys  an  interest  in  real  estate.  A  present  interest  in 
the  trees  was  granted;  and,  by  the  rule  that  the  grant  of  a  thing 
carries  with  it,  as  incident,  all  that  is  necessary  to  its  beneficial 
enjoyment,  there  passed  by  the  same  deed  a  right  to  the  soil  upon 
which  they  grew.  This  last  named  right,  for  the  reasons  above  sug- 
gested, was  not  a  mere  license  to  enter  upon  the  land  and  remove 
the  trees  within  a  limited  time,  revocable,  except  so  far  as  already 
acted  upon;  but  rather  a  peculiar  incorporeal  right  or  easement  in 
the  grantor's  land,  so  far  as  necessary  for  the  support  and  growth 
of  the  trees,  with  rights  of  entry  and  of  way  during  the  time  named, 
and  not  revocable  by  the  grantor. 

The  estate  which  the  tenants  acquired  in  this  case  may  be  regarded 
either  as  giving  full  title  to  the  trees,  defeasible  by  failure  to  cut 
and  remove  the  same  within  three  years,  with  such  interest  in  the 
demandant's  other  land,  by  way  of  easement  or  incorporeal  right,  as 
is  necessary  to  the  enjoyment  of  the  estate  granted;  or  as  giving  to 
the  tenants  a  leasehold  estate  in  the  premises  for  three  years,  with 
a  right  of  appropriation  to  be  exercised  during  the  term.  In  either 
aspect,  they  establish  a  good  defense  under  their  plea  and  specifica- 
tion, notwithstanding  the  deed  was  not  regularly  recorded.  If  the 
estate  created  was  of  the  latter  description,  then,  as  it  was  for  only 
three  years,  there  was  no  necessity  that  the  deed  should  be  recorded. 
If  it  was  the  former,  then  proof  of  actual  notice  to  the  demandant 
of  the  previous  sale  of  the  trees,  with  the  reference  in  his  deed  to  the 
mortgage  to  Beals,  in  which  the  trees  are  reserved  as  having  been 
sold  to  the  tenants,  will  give  them  a  valid  and  effectual  title,  as 
against  the  subsequent  deed  to  the  demandant.  Gen.  Sts.  c.  89, 
sec.  3.  It  is  not  necessary,  to  such  actual  notice,  that  there  should 
have  been  an  actual  exhibition  of  the  deed.  It  has  been  held  that  a 
description  in  a  deed,  bounding  on  land  of  a  party  by  name,  was 
notice  to  the  grantee  in  the  deed  that  the  land  bounded  upon  was  so 
owned  by  virtue  of  some  proper  instrument  of  conveyance.  George 
v.  Kent)  7  Allen,  16;  Pike  v.  Good  now,  12  Allen,  472. 

Verdict  set  aside ;  new  trial  ordered. 


IV.  2.]  FRUCTUS   INDUSTRIALES.  187 

d.   Separate  levy  of  execution  on  frucius  naturales. 

ADAMS  v.  SMITH. 

1  Breese  (III.),  221.  —  1828. 

Opinion  of  the  Court  by  Justice  Lockwood.  —  This  was  an  action  cf 
trespass  quare  clausum  f regit.  The  defendants  plead  not  guilty,  and 
Adams  justified  under  an  execution  from  a  justice  of  the  peace 
against  the  plaintiff,  by  virtue  of  which,  he  seized  and  took  the 
apple  trees,  etc.,  in  the  plaintiff's  declaration  mentioned. 

To  this  plea,  plaintiff  below  (Smith),  demurred,  and  the  court  sus- 
tained the  demurrer,  and  on  trial  of  the  issue  of  not  guilty,  the  jury 
found. a  verdict  for  plaintiff  below  for  $130,  and  judgment  was  given 
thereon.  To  reverse  which,  a  writ  of  error  has  been  brought  to  this 
court.  The  first  error  assigned  is,  that  the  Circuit  Court  erred  in 
sustaining  the  demurrer.  The  only  question  presented  by  the 
demurrer  is,  whether  on  an  execution  from  a  justice  of  the  peace,  a 
constable  can  enter  on  land,  and  sell  fruit  trees  there  standing  and 
growing?  This  question  is  easy  of  solution.  Fruit  trees  are  part 
and  parcel  of  the  freehold,  and  can,  in  no  sense,  be  considered  as 
goods  and  chattels.  How  far  trees  growing  in  a  nursery  might  be 
considered  goods  and  chattels,  is  not  involved  in  the  question 
decided  by  the  demurrer,  for  the  plea  does  not  allege  them  to  be 
nursery  trees  intended  for  sale.  .  The  demurrer  was,  therefore,  cor- 
rectly decided. 

Another  error  assigned  is,  that  the  court  erred  in  overruling  the 
motion  for  a  new  trial.  It  has  been  frequently  decided  by  this 
court,  that  overruling  a  motion  for  a  new  trial  cannot  be  assigned 
for  error.     The  judgment  below  must  be  affirmed  with  costs. 

Judgment  affirmed. 


2.  Fructus  Industriales. 
a.    What  they  are.1 

SPARROW  v.  POND. 

49  Minnesota,  412.  —  1892. 
[Reported  herein  at  p.  171.] 

1  See  also  Graves  v.   Weld,  5  B.  &  Ad.  105,  reported  infra,  p.  403. —  Ed. 


188      CONSTITUENTS    AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 
SMITH  v.  PRICE. 

39  ILLINOIS,  28. —  1865. 
[Reported  herein  at  p.  163.] 


b.  Effect  on  fructus  industriales  of  sale  of  land. 

(1.)  In  General. 

TRIPP  v.  HASCEIG. 

20  Michigan,  254.  —  1870. 

Graves,  J.  —  The  plaintiff  in  error  sued  Hasceig  for  the  alleged 
conversion  of  a  quantity  of  standing  corn,  which  Tripp  claimed  as 
his  property,  and  upon  the  trial  a  verdict  passed  for  Hasceig.  Tripp 
now  brings  error  and  insists  that  the  circuit  judge  erred  in  charging 
the  jury,  and  he  asks  that  the  judgment  be  reversed  therefor. 

The  evidence  conduced  to  show  that  Tripp,  being  the  owner  of  a 
farm  in  Kalamazoo  county,  on  which  he  resided  and  on  which  he 
had  raised  a  field  of  corn  in  the  season  of  1865,  conveyed  the  farm  to 
defendant  about  the  13th  of  December,  in  the  same  year,  by  warranty 
deed,  while  the  corn  was  still  standing,  unsevered,  where  it  grew, 
and  without  inserting  in  the  deed  any  exception  or  reservation;  and 
that  Hasceig  took  and  appropriated  a  part  of  the  crop  as  properly 
conveyed  to  him  by  the  deed.  It  was  claimed  by  Tripp  on  the  trial 
that  the  crop,  being  over  ripe  when  the  deed  was  given,  did  not  pass 
by  the  conveyance,  but  the  circuit  judge  advised  the  jury  that  the 
corn,  though  ripe  and  no  longer  deriving  nourishment  from  the 
ground,  would,  if  still  attached  to  the  soil,  pass  by  conveyance  of 
the  land;  and  this  is  one  of  the  rulings  complained  of. 

We  think  this  instruction  was  right,  and  we  concur  in  the  sugges- 
tion of  the  circuit  judge,  that  whether  the  corn  would  pass  or  not, 
could  no  more  depend  upon  its  maturity  or  immaturity,  than  the 
passage  of  a  standing  forest  tree  by  the  conveyance  of  the  land, 
would  depend  upon  whether  the  tree  was  living  or  dead. 

It  is  true  that  the  authorities  in  alluding  to  this  subject  very  gen- 
erally use  the  words  growing  crops,  as  those  embraced  by  a  convey- 
ani  e  of  the  land,  but  this  expression  appears  to  have  been  commonly 
employed  to  distinguish  crops  still  attached  to  the  ground,  rather 
than  to  mark  any  distinction  between  ripe  and  unripe  crops. 

In  some  eases,  where  the  question  has  been  raised  under  the  statute 
of  frauds,  as  to  the  validity  of   verbal  sales  of   unsevered  crops,  a 


IV.  2.]  FRUCTUS    INDUSTRIALES.  189 

distinction  has  been  drawn  between  such  as  were  fit  for  harvest,  and 
such  as  were  not,  upon  the  supposition  that  the  former  would  not  be 
within  the  statute,  while  the  latter  would  be  embraced  by  it.  See 
cases  referred  to  in  Austin  v.  Sawyer,  9  Cow.  R.  39. '  In  Austin  v. 
Sawyer,  however,  Chief  Justice  Savage  seems  to  have  rejected  the 
distinction,  as  he  held  that  a  verbal  sale  of  growing  crops  was  valid 
in  New  York. 

But  one  case  has  been  cited,  or  is  remembered,  in  which  it  has 
been  intimated  that  a  mature  and  unsevered  crop  would,  because 
of  its  being  ripe,  remain  in  the  grantor  of  the  land,  on  an  absolute 
conveyance  of  the  premises  without  exception  or  reservation;  and 
that  is  the  case  of  Powell  v.  Rich,  41  111.  466,  and  the  point  was  not 
essential  to  the  decision  there. 

There  are  many  authorities,  however,  opposed  to  the  distinction 
suggested  in  that  case.  2  Bl.  Com.  122,  note  3;  Broom's  Maxims, 
354,  margin. 

In  Kittredge  v.  Woods,  3  N.  H.  503  Judge  Richardson  cites  Went- 
worth,  59,  for  the  proposition  that  "  When  the  land  is  sold  and  con- 
veyed without  any  reservation,  whatever  crop  is  upon  the  land 
passes,"  and  after  stating  that  ripe  grain  in  the  field  is  subject  to 
execution  as  a  chattel,  Judge  Richardson  adds:  "  Yet  no  doubt 
seems  ever  to  have  been  entertained  that  it  passes  with  the  land 
when  sold  without  any  reservation."  And  in  the  case  of  Heavilon  v. 
Heavilon,  29  Ind.  509,  cited  by  plaintiff's  counsel  on  another  ground, 
the  court  expressly  admit  that  until  severance,  the  crop,  as  between 
vendor  and  purchaser  of  the  land,  is  part  of  the  realty.  Indeed,  the 
authorities  are  quite  decisive  that,  whether  the  crop  of  the  seller  of 
the  farm  goes  with  the  land  to  the  purchaser  of  the  latter,  when 
there  is  no  reservation  or  exception,  depends  upon  whether  the  crop 
is  at  the  time  attached  to  the  soil,  and  not  upon  its  condition  as  to 
maturity.  And  this  seems  to  be  the  most  natural  and  most  practical 
rule.  When  parties  are  bargaining  about  land,  the  slightest  observa- 
tion will  discover  whether  the  crops  are  severed  or  not,  and  there 
will  be  no  room  for  question  or  mistake  as  to  whether  they  belong 
with  the  land  or  not,  if  owned  by  the  vendor. 

If,  however,  the  crops  are  to  be  considered  as  land  or  personal 
chattels,  as  they  continue  or  do  not  continue  to  draw  nourishment 
from  the  soil,  the  instances  will  be  numerous  in  which  very  difficult 
inquiries  will  be  requisite  to  settle  the  point. 

It  was  further  urged  by  plaintiff  in  error  that,  if  it  should  be  con- 
sidered that  the  corn  would  pass  by  the  deed,  still  the  jury  should 

1  Reported  supra,  p.  31.  —  Ed. 


190      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.  CH.  II. 

have  been  allowed  to  inquire  whether  the  parties  did  not  enter  into 
a  contemporaneous  verbal  agreement,  by  which  the  grain  was  to 
belong  to  Tripp  as  part  of  the  consideration  for  the  farm.  Without 
pausing  to  consider  whether  the  plaintiff  could  be  permitted  to  make 
the  proof  suggested,  or  could  support  his  action  by  any  arrangement 
like  that  supposed,  it  is  quite  sufficient  to  observe  that  there  does 
not  appear  to  have  been  any  evidence  fairly  tending  to  show  the 
existence  of  such  an  agreement.  The  plaintiff  was  himself  on  the 
stand,  and  yet  he  did  not  hint  at  the  existence  of  a  bargain  of  that 
kind. 

It  was  finally  insisted  that  the  charge  of  the  court  was  erroneous 
in  stating  that  a  subsequent  agreement  by  the  vendee,  that  the 
vendor  should  have  the  corn,  would  be  void  for  want  of  considera- 
tion; and  we  are  told  that  the  error  on  this  point  is  shown  by  the 
circumstance  that  there  was  enough  to  warrant  the  jury  in  finding 
that  defendant  was  under  an  equitable  obligation,  to  have  the  deed 
so  reformed  as  to  except  the  corn,  and  that  this  fact  constituted  a 
sufficient  consideration  for  an  agreement  by  Hasceig,  that  the  crop 
should  belong  to  Tripp. 

This  argument  assumes,  that  if  the  nonreservation  of  the  corn  in 
the  deed  was  by  mistake  satisfactorily  ascertained  or  admitted,  that 
then  an  equity  would  arise  for  the  correction  of  the  deed,  which  in 
turn  would  be  an  adequate  consideration  to  support  a  subsequent 
agreement  by  Hasceig,  that  the  grain  should  belong  to  Tripp.  We 
need  not  examine  the  validity  of  this  view,  since  it  is  quite  manifest 
that  the  case  contemplated  by  it,  is  not  found  in  the  record 
before  us. 

The  position  taken  implies  that  there  was  evidence  before  the  jury 
to  establish,  according  to  the  requirements  of  a  court  of  equity,  a 
mistake  in  the  deed  in  not  reserving  the  corn,  and  that  there  was 
also  evidence  conducing  to  prove  a  subsequent  agreement  that  Tripp 
should  have  the  corn,  and  resting  for  consideration  on  the  right  to 
have  the  deed  corrected  in  equity. 

There  was  a  little  evidence  favoring  the  idea  of  a  subsequent  parol 
recognition  by  Hasceig  of  the  right  of  Tripp  to  the  corn  under  the 
i  onveyance  of  the  land,  but  we  look  in  vain  for  evidence  of  the 
assumed  mistake  in  the  deed. 

It  is  well   settled   that  to  raise  an  equity  to  correct  a  deed,  there 

•  n'>{  only  be  an   error  on   both   sides,  but  the  mistake   must  be 

eradmitted  or  directly  proved.    Adams'  Eq.  171,  margin;  Fry  on 

if,  Per,  (2d  Am.  ed. ),  p.  .;  1  2,  top,  and  note  11.      The  language  of 

ral  of  the  '  ited  by  plaintiff's  counsel  is  to  the  same  effect. 

I  i  Kennardv.  Geoi         \\\     \\     140,  the  court  say  that  the  mistake 


IV.  2.]  FRUCTUS    INDUSTRIALES.  I9I 

must  be  clearly  proved.  In  Cancdy  v.  Marcy,  13  Gray,  373,  it  is  said 
the  court  has  jurisdiction  to  reform  a  deed  upon  clear  oral  evidence 
of  the  mistake,  and  in  Beardsley  v.  Knight,  10  Vt.  185,  the  expression 
is  still  stronger.  It  is  there  declared  that  the  court  will  correct  a 
misatake  in  a  conveyance  "  when  undeniably  proved,"  and  that 
"  unless  it  be  so  proved  it  will  not  interfere."  It  is  very  certain 
that  the  record  before  us  fails  to  show  that  a  mistake  in  the  deed  was 
established  on  the  trial  below,  or  that  any  evidence  was  there  intro- 
duced, fairly  tending  to  show  that  fact,  and  therefore  upon  the 
theory  of  plaintiff's  counsel,  there  was  no  evidence  of  any  considera- 
tion for  a  subsequent  agreement  by  Hasceig,  that  Tripp  should  have 
the  corn. 

The  charge  of  the  court  should  be  construed  in  the  light  of  the 
evidence  before  the  jury,  and  when  viewed  in  this  way  we  discover 
nothing  of  which  the  plaintiff  can  justly  complain. 

In  order  to  preclude  all  misapprehension  as  to  the  scope  of  this 
decision,  we  deem  it  not  improper  to  add,  that  we  express  no  opinion 
as  to  whether  Tripp  would  be  liable  to  Hasceig  for  any  part  of  the 
crop  appropriated  by  the  former,  with  the  acquiescence  of  the  latter, 
under  a  verbal  reservation. 

The  judgment  of  the  court  below  is  affirmed  with  costs. 

Christiancy,  J.  —  I  concur  with  my  brethren  in  the  opinion  of  my 
brother  Graves;  but  had  it  appeared  in  the  case  that  it  was  the  cus- 
tom of  the  country  where  the  farm  was  situated,  (as  it  is  in  some  of 
the  western  States,)  to  keep  the  ripe  corn  in  the  field  for  the 
winter,  or  till  wanted  for  use  or  market,  and  to  be  taken  only  on  the 
like  occasions  or  for  the  like  reasons  as  if  stored  in  the  crib  or 
granary,  —  thus  using  the  field  merely  as  a  substitute  for  such  crib 
or  granary, — I  am  inclined  to  think  I  might  have  agreed  in  the 
opinion  intimated  by  the  Supreme  Court  of  Illinois  in  Powell  v.  Rick, 
41  111.  466,  cited  by  Brother  Graves. 


BAKER  v.  JORDAN. 
3  Ohio  State,  438.  —  1854. 


Assumpsit.  August  18,  1874,  plaintiff  contracted  verbally  for  the 
purchase  from  defendant  of  certain  real  estate,  whereon  there  was 
standing  a  number  of  acres  of  corn  which  was  reserved  by  parol. 
Two  days  later  the  deed  was  made  containing  no  reservation  or 
exception  of  the  crop.      Defendant  offered  to  prove  the  parol  reser- 


192      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

vation.  This  evidence  was  received  under  objection.  Verdict  for 
defendant.  Motion  for  a  new  trial,  and  the  court  being  equally- 
divided  on  the  motion,  the  case  was,  by  consent,  reserved  for  decision 
in  this  court. 

Warden,  J.  — That  growing  corn  will  pass  by  common  deeds  of 
the  lands  whereon  it  grows,  when  no  valid  conversion  of  it  into 
personalty  is  shown  to  have  preceded  the  conveyance,  cannot  be 
doubted.  But  whether  such  a  conveyance  always  purports  to  carry 
the  title  to  growing  crops,  is  another  question.  Many  things  may 
be  in  or  on  the  ground  when  a  deed  is  made,  which  the  parties  do 
not  intend,  and  which  no  inflexible  rule  of  law  requires  to  fall  under 
the  conveyance.  Such  things  are  realty  or  personalty,  according  to 
the  intention  of  the  parties.  Lands  may  be  sold  while  under  lease; 
the  lessee  may  have  built,  for  manufacturing  purposes  or  the  like, 
with  the  right,  as  between  landlord  and  tenant,  to  remove  his  build- 
ings at  the  end  of  his  term;  in  such  a  case,  would  a  deed  to  a  stranger 
purport  to  convey  the  buildings?  It  is  certain,  that  when  the  vendor 
is  in  possession,  and  has  himself  made  such  erections  on  his  lands, 
they  would  pass  by  his  deed.  Why  not,  then,  construe  the  deed  as 
pretending  to  convey  them  in  every  case?  And  why  admit  proof 
outside  of  the  deed,  to  show  that  the  buildings  were  of  the  nature 
first  supposed,  and  thus  to  manifest  the  understanding  of  the  parties 
that  they  were  not  touched  by  the  conveyance?  Is  it  not  because 
such  proof  does  not  vary,  enlarge,  diminish,  or  contradict  the  deed, 
that  it  is  admissible,  as  an  answer  to  whatsoever  complaint  the 
vendee  may  prefer,  on  the  ground  that  he  has  failed  to  get  what  his 
deed  purports  to  convey? 

When  we  consider  the  case  of  a  parol  sale  of  growing  corn  to  A., 
and  a  subsequent  deed  of  the  land  to  B.,  while  the  corn  continued 
to  grow  on  the  land,  we  must  allow  that  proof  of  such  sale,  and 
notice  of  the  fact  given  to  B.,  when  he  took  his  deed,  would 
establish  satisfactorily  that  the  parties  to  the  deed  never  intended 
to  treat  the  corn  as  part  of  the  realty,  or  as  within  the  conveyance. 
Does  the  evidence  of  such  intention  vary  or  contradict  the  deed? 
I  think  not.  But  these  are  all  cases  in  which  the  vested,  fixed  rights 
of  some  third  person  are  involved. 

However  little  favor  should  be  shown  to  reservations  made  by  the 
vendor  by  parol,  when  he  is  in  possession,  there  must  be  some  such 
reservations  which  are  valid.  It  is,  in  such  instances,  a  question  of 
intent.  Where  that  intent  relates  to  things  which  may  sometimes 
be  treated  as  realty,  and  sometimes  as  personalty,  the  evidence  of 
its  manifestation  in  the  conduct  of  the  parties,  or  in  their  words,  at 
the  date  of  the  deed,  does  not  seem  to  alter,  enlarge,  or  limit  their 


IV.  2.]  FRUCTUS    INDUSTRIALES.  I93 

written  contract.  For,  as  already  observed,  that  contract  does  not 
necessarily  embrace  such  things 

The  case  of  a  deed,  then,  is  clearly  distinguishable  from  that  of 
many  other  written  contracts.  What  such  an  instrument  purports 
to  convey,  is  to  be  known  from  the  legal  rules  which  have  assigned 
to  it  a  definite  legal  character.  And  when  those  rules  are  attentively 
considered,  it  will  be  found  that  the  common  words  describing  the 
ground  conveyed,  must  always  leave  it  an  open  question,  whether 
the  growing  crops  were  intended  as  part  of  the  thing,  in  which  the 
property  was  to  change.  In  the  absence  of  any  proof  that  any 
other  valid  disposition  of  them  attended,  or  had  preceded  the  deed, 
that  instrument  would  certainly  convey  them.  But  proof  of  such 
other  disposition  would  as  certainly  withdraw  them  from  the  convey- 
ance, where  the  right  of  any  third  person  interposed  itself.  Is  there 
any  reason  for  holding  that  other  disposition  void,  because  it  was 
between  the  parties  to  the  deed,  and  none  other?  If  not,  is  such 
disposition  void  because  the  evidence  of  it  is  not  carried  into  the 
writing  of  conveyance  on  any  presumption  that  all  the  agreement 
is  therein  witnessed? 

This  question  is  not  without  difficulty.  Among  the  purely  artificial 
rules  of  evidence,  none  much  more  commends  itself  to  regard  than 
that  which  forbids  the  parties  to  a  solemn  contract,  reduced  to  the 
certainty  of  a  writing,  to  alter,  vary,  limit,  enlarge,  or  contradict 
what  they  have  thus  made  certain,  by  the  recollections  of  witnesses 
attempting  to  show  what  the  parties  said  before  or  at  the  time  of 
signing  the  contract.  If,  in  some  instances,  the  strict  observance 
of  this  rule  may  work  hardship,  such  cases  are  so  exceptional,  and 
the  reason  of  the  rule  is  so  evident,  that  nothing  less  than  the  cau- 
tion of  a  chancellor  can  make  a  safe  departure  from  it  to  correct  or 
set  aside  the  solemn  evidence  of  what  the  parties  have  agreed  or 
declared. 

From  the  wise  policy  of  that  rule  of  evidence  we^are  not  disposed 
to  depart.  But,  after  a  careful  examination  of  the  question,  and 
notwithstanding  some  contrary  opinions  elsewhere,  we  have  felt  it 
our  duty  to  respect  the  common  understanding  of  our  people  on  this 
subject.  Custom  in  Ohio,  if  not  in  most  of  the  States,  treats  growing 
crops  as  personalty,  even  where  the  strict  law  laid  down  by  some  of 
the  courts  would  not  allow  it  to  assume  that  character.  It  would 
not  be  difficult  to  establish  that  growing  wheat,  corn,  and  the  like, 
are  generally  looked  upon  as  though  severed  from  the  land,  when  a 
conveyance  of  the  latter  is  made.  On  this  subject,  a  section  in 
Greenleaf's  Evidence,  337,  deserves  attention:  "  Upon  the  same 
principle,  parol  evidence  of  usage  or  custom  is  admissible  '  to  annex 

LAW  OF  PROP.   IN  LAND  —  1 3 


194      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CII.  II. 

incidents,'  as  it  is  termed;  that  is,  to  show  what  things  are  custom- 
arily treated  as  incidental  and  accessorial  to  the  principal  thing  which 
is  the  subject  of  the  contract,  or  to  which  the  instrument  relates. 
Thus  it  may  be  shown  by  parol  that  a  heriot  is  due,  by  custom,  on 
the  death  of  a  tenant  for  life,  though  it  is  not  expressed  in  the  lease. 
So  a  lessee  by  deed  may  show  that,  by  the  custom  of  the  country, 
he  is  entitled  to  an  away-going  crop,  though  no  such  right  is  reserved 
in  the  deed.  This  evidence  is  admitted  on  the  principle  that  the 
parties  did  not  intend  to  express  in  writing  the  whole  of  the  contract 
by  which  they  were  to  be  bound,  but  only  to  make  their  contract 
with  reference  to  the  known  and  established  usages  and  customs 
relating  to  the  subject-matter.  But,  in  all  cases  of  this  sort,  the 
rule  for  admitting  the  evidence  of  usage  or  custom  must  be  taken 
with  this  qualification,  that  the  evidence  be  not  repugnant  to,  or 
inconsistent  with,  the  contract;  for  otherwise  it  would  not  go  to 
interpret  and  explain,  but  to  contradict  that  which  is  written.  This 
rule  does  not  add  new  terms  to  the  contract,  which,  as  already  shown, 
cannot  be  done;  but  it  shows  the  full  extent  and  meaning  of  those 
which  are  contained  in  the  instrument."  Now,  it  is  to  be  observed, 
that  our  courts  are  to  take  notice  of  a  usage  far  more  respectable 
than  any  of  the  customs  above  alluded  to  —  a  usage  showing  a  com- 
mon acceptation  and  understanding  of  the  rules  relating  to  growing 
crops,  which  appears  rightly  to  interpret  their  spirit  and  purpose. 
"  It  has  been  sometimes  said,"  observed  Lord  Ellenborough,  "  com- 
munis  error  facit  jus;  but  I  say,  communis  opinio  is  evidence  of  what 
the  law  is  —  not  where  it  is  an  opinion  merely  speculative  and  theo- 
retical, floating  in  the  minds  of  persons,  but  where  it  has  been  made 
the  groundwork  and  substratum  of  practice."  Isherwood  v.  Old- 
know,  3  M.  &  S.  396.  This  language  has  more  fitness,  perhaps, 
when  the  opinion  of  lawyers  is  that  respected;  but  it  is  not  without 
force  when  related  to  a  popular  construction  of  the  law,  which  is  not 
forbidden  by  its  terms.  Applied  to  the  common  understanding  of 
the  legal  rules  res'pecting  growing  crops,  it  seems  entitled  to  regard. 
In  our  statute  law  it  is  written,  that  "  the  emblements  are  annual 
crops  raised  by  labor,  and  whether  severed  or  not  from  the  land  of 
the  deceased  at  the  time  of  his  death,  shall  be  assets  in  the  hands  of 
the  executor  or  administrator,and  shall  be  included  in  the  inventory." 
What  more  natural  than  such  an  enactment  in  a  community  like 
ours?  The  law  harmonizes  with  the  common  understanding;  and 
that  common  understanding  itself  perfectly  agrees  with  other  rules 
of  law  on  the  same  subject.  In  the  excellent  work  of  the  late  Mr. 
Gwynne,  those  rules  are  thus  stated  :  "  Wheat  growing  is  a  chattel, 
and  may  be  levied  upon,  under  an  execution  against  a  defendant  who 


IV.   2.]  FRUCTUS   INDUSTRIALES.  I95 

is  raising  it  on  land  of  another.  Such  annual  productions  or  fruits  of 
the  earth  as  clover,  timothy,  spontaneous  grasses,  apples,  pears, 
peaches,  cherries,  etc.,  are  not  personal  property,  but  incidents  to 
the  land.  Everything  produced  by  annual  planting,  cultivation,  or 
labor,  such  as  corn  or  potatoes,  may  be  sold  on  ajl.fa.,  even  when 
growing  and  immature.  In  such  a  case,  the  sheriff  may  wait  until 
the  wheat  or  other  crop  is  ripe  for  harvest,  then  cut  and  carry  it 
away,  and  sell  it.  He  need  not,  however,  wait,  unless  required  to 
do  so  by  statute,  but  may  sell  before  the  crop  is  matured  or  severed 
from  the  ground.  Where  growing  corn  is  sold,  it  need  not  be 
removed  by  the  purchaser  until  it  is  ripe.  If  left,  it  will  not  be 
liable  to  distress  for  rent  (where  distress  is  allowed),  unless  it  is  left 
for  an  unreasonable  time.  A  purchaser  on  execution  of  a  growing 
crop,  raised  annually  by  labor  and  cultivation,  acquires  the  right  and 
interest  of  the  defendant  in  execution  to  the  crop,  with  the  right  of 
ingress,  egress,  and  regress,  for  the  purpose  of  cutting  and  carrying 
it  away.  The  purchaser  may  lawfully  enter  and  remove  the  crop, 
provided  it  belonged,  when  sold,  to  the  defendant  in  execution, 
although  the  land  on  which  it  was  growing,  and  the  crops,  were  held 
fraudulently  by  another  person.  He  does  not  become  a  trespasser 
thereby;  nor,  by  entering  with  the  sheriff  to  levy  and  sell,  nor  by 
purchasing  at  the  sale."  It  is  due  the  learned  and  lamented  author 
of  the  work  from  which  these  sentences  are  taken  (Gwynne  on 
Sheriffs,  220,  221),  to  keep  in  mind  the  subject  of  his  treatise.  For 
the  purpose  of  a  levy,  growing  wheat  is  certainly,  always  a  chattel; 
and  there  is  no  want  of  accuracy  in  what  he  has  said,  when  his 
object  and  meaning  are  considered  in  the  construction  of  his 
language.  As  we  shall  presently  see,  however,  the  rule  is  not  quite 
as  he  has  given  it. 

The  language  of  C.  J.  Lane,  in  Cassilly  v.  Rhodes,  12  Ohio,  95, 
does  not,  at  first,  appear  to  clash  with  that  just  cited.  He  says: 
"  If  the  question  were  between  the  grantor  and  grantee,  whether 
growing  crops,  annual  or  other,  pass  by  a  deed  of  sale,  it  would  be 
of  easy  solution.  They  are  not,  technically,  '  emblements,'  but 
'  issues,'  or  '  profits,'  and  part  of  the  land,  while  in  the  owner's 
hands;  and,  unless  excepted,  pass  by  the  deed,  because  it  is  con- 
strued most  strongly  against  him  who  makes  it."  But  his  citation 
of  authorities,  9  Cow.  39,  15  Mass.  159,  would  furnish  a  construc- 
tion of  his  words  such  as  would,  if  it  must  prevail,  require  a  large 
modification  of  Mr.  Gwynne's  language.  The  latter  writer  says: 
''  Wheat  growing  is  a  chattel."  C.  J.  Lane  calls  it  a  "  part  of  the 
land  while  in  the  owner's  hands."  The  true  rule  is  not  fully  given 
by  either.     To  Mr.  Gwynne's  rule,  as  well  as  to  that  of  C.  J.  Lane, 


196      CONSTITUENTS   AND   INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

qualifications  are  to  be  annexed.  Wheat  growing  is  not  always  a 
chattel;  nor  even  while  the  lands  whereon  it  grows  are  held  by  the 
owner,  is  it  always  a  part  of  the  land.  No  question  of  reservation 
by  parol  was  involved,  or  attempted  to  be  raised  in  12  Ohio.  We 
are  not  called  upon  to  overrule  any  decision,  in  saying,  as  we  do, 
that  growing  corn,  or  the  like,  may  sometimes  be  a  mere  chattel, 
though  not  always  so,  and  on  the  other  hand,  may  be  such  mere 
chattel,  although  unsevered  from  the  lands,  while  the  latter  are  in 
the  hands  of  the  owner  himself. 

Thus  regarding  the  legal  character  of  growing  corn,  or  the  like, 
we  feel  authorized  to  declare,  that  a  parol  reservation  of  it  may  be 
proven,  notwithstanding  a  subsequent  deed  between  the  same  parties, 
in  the  common  form.  And  in  so  declaring,  we  make  no  departure 
from  the  wholesome  rule  of  evidence,  which  gives  so  much  respect 
to  the  solemn,  written  contracts  of  parties. 

A  deed  purports  to  convey  the  realty.  But  what  is  the  realty? 
Growing  corn  may  be  part  of  it,  for  some  purposes,  but  it  is  gen- 
erally to  be  considered  as  personalty.  If  the  parties  to  a  deed, 
either  by  words  or  their  behavior,  signify  their  understanding  that  as 
between  them  it  is  personalty,  the  law  will  so  regard  it  and  will  respect 
their  intention  in  the  construction  of  the  deed.  When  the  evidence 
of  such  understanding  is  produced,  it  is  not  to  contradict  the  deed, 
for  with  that  it  is  perfectly  consistent;  but  it  is  to  show  that  what 
in  some  instances  would  go  with  the  lands  as  part  of  the  realty,  was, 
in  that  case,  converted  into  personalty  by  the  will  of  the  parties,  and 
thus  to  hold  the  deed  to  its  true  meaning  and  effect. 

There  was  no  error  in  admitting  the  evidence  objected  to  in  this 
case. 

The  motion  for  new  trial  will  be  overruled,  and  judgment  given  for 
the  defendant. 


(2.)  Exceptions  or  Reservations, —  How  to  Be  Made. 

AUSTIN  v.  SAWY  ER. 

9  Cowen  (N.  Y.),  39.—  1828. 

[Reported  herein  at  p.  31.] 


SMITH  v.  PRICE. 

39  Illinois,  28.  —  1865. 

[Reported  herein  at  p.  [63.] 


IV.  2.]  FRUCTUS   INDUSTRIALES.  I97 

BAKER  v.  JORDAN. 

3  Ohio  State,  438.  —  1854. 
[Reported  herein  at  p.  191.] 


(3.)  Effect  of  Sale  of  Land  on  Foreclosure. 
LANE  v.  KING. 

8  Wendell  (N.  Y.),  584.  —  1832. 

By  the  Court,  Sutherland,  J.  —  The  question  in  this  case  is, 
whether  the  lessee  of  a  mortgagor  is  entitled,  .as  against  the  mort- 
gagee to  the  crops  growing  on  the  mortaged  premises  at  the  time  of 
the  foreclosure  and  sale,  the  mortgagee  having  become  the  purchaser. 
In  England  the  mortgagee  may  sustain  an  action  of  ejectment  against 
the  mortgagor  or  any  one  claiming  under  him,  by  title  subsequent 
to  the  mortgage,  without  any  notice  to  quit;  they  are  considered 
mere  tenants  at  will.  Keech  v.  Hall,  Doug.  21;  Moss  v.  Gallimore, 
Id.  269;  Pow.  Mort.  205,  206,  ch.  7.  In  this  State,  however,  it  has 
been  held  that  a  mortgagor  is  entitled  to  notice  to  quit  before  he 
can  be  treated  as  a  trespasser,  on  the  ground  that  there  is  an  implied 
consent  and  agreement  between  him  and  the  mortgagee,  that  the 
former  may  continue  to  occupy  the  premises.  Jackson  v.  Longhead, 
2  Johns.  75;  Jackson  v.  Fuller,  4  Johns.  215;  M' ' Kercher  v.  Hawley, 
16  Johns.  289.  A  purchaser  of  the  interest  of  the  mortgagor,  or  a 
lessee  under  him,  or  any  third  person,  stands  upon  the  same  footing 
here  as  in  England,  and  is  not  entitled  to  notice  to  quit  from  the 
mortgagee.  There  is  no  privity  of  contract  or  estate  between  the 
mortgagee  and  such  third  person  —  as  to  him  they  are  trespassers. 
4  Johns.  215;  16  Id.  289;  20  Id.  61.  The  English  doctrine,  therefore, 
in  relation  to  the  rights  of  a  mortgagee  against  a  mortgagor  or  his 
grantees  or  assignees,  is  entirely  applicable  to  this  case. 

In  Keech  v.  Hall,  Doug.  21,  already  referred  to,  the  mortgagee 
brought  an  action  of  ejectment  against  a  tenant,  who  claimed  under 
a  lease  from  the  mortgagor,  given  after  the  mortgage  without  the 
privity  of  the  mortgagee.  Ld.  Mansfield,  in  delivering  the  opinion 
of  the  court,  said:  "On  full  consideration  we  are  all  clearly  of 
opinion,  that  there  is  no  inference  of  fraud  or  concert  against  the 
mortgagee  to  prevent  him  from  considering  the  lessee  of  the  mort- 
gagor as  a  wrongdoer."  The  question  turns  upon  the  agreement 
between  the  mortgagor  and  the  mortgagee;  when  the  mortgagor  is 
left  in  possession,  the  true  inference  to  be  drawn  is  an  agreement  that 


198      CONSTITUENTS   AND    INCIDENTS    OF   LAND.      [PT.  II.   CH.  II. 

he  shall  possess  the  premises  at  will  in  the  strictest  sense  and,  there- 
fore, no  notice  is  ever  given  him  to  quit  and  he  is  not  even  entitled 
to  reap  the  crops  as  other  tenants  at  will  are  because  all  are  liable  to 
the  debt,  on  payment  of  which  the  mortgagee's  title  ceases.  The 
mortgagor  has  no  power,  express  or  implied,  to  let  leases  not  sub- 
ject to  every  circumstance  of  the  mortgage;  the  tenant  stands 
exactly  in  the  situation  of  the  mortgagor. 

This  court,  in  Af' Kercher  v.  Hawley,  16  Johns.  292,  also  held  that 
the  relation  subsisting  between  the  mortgagor  and  mortgagee,  did 
not  imply  a  right  on  the  part  of  the  mortgagor  to  lease.  The  mort- 
gagor, therefore,  in  giving  a  lease  becomes  as  to  the  mortgagee  a 
disseisor;  vide  also  Jackson  v.  Hopkins,  18  Johns.  487;  Jackson  v. 
Dickerson,  6  Cow.  147;  Woodf.  237;  and  if  during  the  disseisin,  he 
should  cut  down  the  grass,  trees  or  corn  growing  on  the  land,  the 
disseisee,  after  re-entry,  may  have  an  action  of  trespass  vi  et  armis 
against  him  for  the  trees,  grass  or  corn ;  for  after  re-entry,  the  law, 
as  to  the  disseisor  and  his  servants,  supposes  the  freehold  always  to 
have  continued  in  the  disseisee,  though  perhaps  trespass  vi  et  armis 
would  not  lie  against  the  lessee,  for  the  fiction  of  law  shall  not  by 
relation  make  him  a  wrongdoer  vi  et  armis,  who  comes  in  by  color 
of  title,  because  in  fictione  juris  semper  aquitas  existat  Lifford's  Case, 
11  Co.  51.  But  though  the  lessee  shall  not  be  treated  as  a  trespasser, 
still  if  he  cuts  the  grass  and  trees,  or  sows  the  land  and  cuts  and 
carries  away  the  crops,  they  may  be  recovered  by  the  disseisee  after 
re-entry;  the  re-entry  by  relation  vests  the  property  in  him,  as  well 
for  the  emblements  as  the  freehold,  and  equally  against  the  feoffee 
or  lessee  of  the  disseisor  as  against  disseisor  himself,  though  it  will 
not,  as  against  a  person  coming  in  by  color  of  title,  give  him  an 
action  of  trespass  vi  et  armis.  11  Co.  51;  Dyer,  31,  173;  Pow,  Mort. 
213,  214,  ch.  7.  Mr.  Powell  observes,  that  as  to  emblements  there  is 
a  distinction  between  tenants  who  have  particular  estates  that  are 
uncertain,  defeasible  by  the  act  of  the  parties,  or  by  the  act  of  God, 
or  those  who  have  particular  estates  uncertain  —  defeasible  by  a 
right  paramount;  for  in  the  latter  case,  he  that  hath  the  right  para- 
mount shall  have  the  emblements.  The  mortgagee  undoubtedly,  as 
against  the  mortgagor  and  his  grantees,  has  the  paramount  right. 
Mi-.  Powell  considers  the  right  of  a  mortgagee  to  emblements  as 
against  the  lessee  of  the  mortgagor,  as  necessarily  resulting  from 
the  doctrine  established  by  Ld.  Mansfield,  in  Kerch  v.  Hall,  Doug. 
21,  that  a  mortgagor  lias  no  right  to  lease;  he  observes,  that  he  can 
see  no  ground  on  which  the  case  of  such  lessee,  as  to  emblements, 
'an  lie  distinguished  from  any  other  tenant  under  a  tortious  title; 
for  if  he   be  considered  a   wrongdoer  as   to  his   occupation   of    the 


IV.   2.]  FRUCTUS    INDUSTRIALES.  I99 

premises,  he  cannot  be  considered  in  a  different  character  as  to  the 
emblements,  nor  can  there  be  any  ground  to  imply  a  consent  to 
cultivate  the  property,  when  no  implication  is  admitted  of  a  consent 
to  occupy  it.     Jac.  Law  Die,  Emblements;  4  Rep.  21. 

This  reasoning  appears  to  me  to  be  conclusive.  The  plaintiff, 
therefore,  according  to  the  stipulation  of  the  parties  in  the  case,  is 
entitled  to  judgment  for  $40  damages  and  $30  costs.1 


HECHT  v.   DETTMAN. 
56  Iowa,  679.  —  1881. 


Beck,  J. — I.  Two  cases  are -presented  together  in  this  appeal. 
They  involve  the  same  facts  and  rules  of  law,  and  are  between  the 
same  parties;  they  are,  therefore,  properly  submitted  together  upon 
the  same  abstract.  There  is  no  dispute  as  to  the  facts,  which  are  as 
follows:  The  property  replevied  is  barley,  cut  and  in  shocks,  and 
oats,  being  partly  threshed  and  partly  in  bundles  or  sheaves,  all  upon 
the  premises  where  it  was  grown.  The  defendant  had  rented  the 
land  of  one  Ehrke,  who  had  previously  executed  two  mortgages 
thereon,  one,  the  senior  incumbrance,  to  the  New  England  Loan 
Company,  and  the  other  to  the  plaintiff,  Hecht.  After  defendant 
had  rented  the  land  plaintiff  foreclosed  his  mortgage,  and  on  the 
7th  day  of  July,  1879,  the  time  for  redemption  from  the  sale,  as 
prescribed  by  the  statute,  having  expired,  a  deed  was  executed  by 
the  sheriff.  The  other  mortgage  was  foreclosed  and  the  land  was 
sold  to  one  not  a  party  to  this  transaction  and  the  time  of  redemp- 
tion under  the  statute  expired  August  15,  1879,  when  a  sheriff's  deed 
was  made.  The  foreclosure  and  sale  under  this  mortgage  cut  off 
all  claim  or  title  held  by  plaintiff  as  well  as  by  the  mortgagor. 
Defendant  continued  in  possession  of  the  land  up  to  the  trial  in  the 
court  below.  At  the  time  plaintiff  received  his  deed  the  grain  was 
not  cut,  but  it  was  mature  and  ready  for  harvesting  before  that  day. 
Rainy  weather  had  prevented  the  defendant  from  cutting  the  grain 
before  plaintiff's  deed  was  executed.  The  court  instructed  the  jury 
that  the  title  of  the  grain  passed  to  plaintiff  by  the  sheriff's  deed  and 
directed  a  verdict  for  plaintiff.  We  are  required  to  determine 
whether  this  view  of  the  law  be  correct. 

II.  The  sheriff's  deed  executed  upon  the  foreclosure  sale  vested 
plaintiff  with  the  title  of  the  land  and  the  right  to  all  growing  crops 
followed  the  title  thus  acquired.     Downardv.  Groff,  40  Iowa,  597. 

1  See  Batterman  v.  Albright,  122  N.  Y.  484;  supra,  p.  164.  — Ed. 


200      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

This  rule,  we  think,  is  not  applicable  to  grain  which  has  matured 
and  is  ready  for  the  harvest.  It  then  possesses  the  character  of 
personal  chattels,  and  is  not  to  be  regarded  as  a  part  of  the  realty. 
See  i  Schouler's  Personal  Property,  125,  126;  Bingham  on  Sales  of 
Real  Property,  180,  181. 

This  conclusion  is  well  supported  upon  the  following  reasons: 
The  grain  being  mature,  the  course  of  vegetation  has  ceased  and  the 
soil  is  no  longer  necessary  for  its  existence.  The  connection 
between  the  grain  and  the  ground  has  changed.  The  grain  no 
longer  demands  nurture  from  the  soil;  the  ground  now  performs  no 
other  office  than  affording  a  resting  place  for  the  grain  —  it  has  the 
same  relations  to  the  grain  that  the  warehouse  has  to  the  threshed 
grain  or  the  field  has  to  the  stacks  of  grain  thereon.  It  will  not  be 
denied  that  when  the  grain  is  cut  it  ceases  to  be  a  part  of  the  realty. 
The  act  of  cutting,  it  is  true,  appears  to  sever  the  straw  from  the 
land.  But  it  is  demanded  by  the  condition  of  the  grain.  It  is  no 
longer  growing;  it  is  no  longer  living  blades  which  require  the 
nourishment  of  the  soil  for  its  existence  and  development.  It  is 
changed  in  its  nature  from  growing  blades  of  barley  or  oats  to  grain 
mature  and  ready  for  the  reaper.  Now  the  mature  grain  is  not 
regarded  by  the  law  like  the  growing  blades,  as  a  part  of  the  realty, 
but  as  grain  in  a  condition  of  separation  from  the  soil. 

Suppose  the  defendant  had  cut  a  part  of  the  seventy-two  acres  of 
grain  in  controversy;  the  grain  so  cut,  it  will  not  be  denied,  would 
not  have  passed  to  plaintiff.  There  is  no  valid  reason  why  the  act 
of  cutting  should  change  the  property  in  the  grain.  The  work 
required  time  and,  therefore,  plaintiff  loses  a  part  of  his  property. 
All  of  the  grain  is  in  the  same  condition,  all  ready  for  the  reaper. 
The  part  cut  is  his  property,  while  the  part  uncut  belongs  to  the  land- 
owner. We  think  the  ownership  of  the  grain  should  be  determined 
by  its  condition,  not  by  the  act  of  cutting,  which  cannot  be  done  as 
soon  as  it  is  demanded  by  its  condition.  We  conclude  that  for  the 
reason  xthe  grain  was  mature  and  was  uncut  because  defendant  has 
been  unable  to  do  the  work,  it  cannot  be  regarded  as  part  of  the 
realty  which  passed  with  the  deed  to  plaintiff. 

Counsel  for  defendant  insists  that  as  defendant  was  in  the 
adverse  possession  of  the  land,  the  action  of  replevin  will  not  lie  to 
recover  the  grain.  We  find  it  unnecessary  to  determine  the  question 
thus  raised,  as  we  hold  that  defendant's  right  of  property  in  the 
grain  accrued  when  the  grain  matured,  whether  he  did  or  did  not 
hold  adversely  to  the  plaintiff  after  the  sheriff's  deed  was  executed. 
The  judgment  of  the  Circuit  Court  must  be  reversed. 


IV.  2.]  FRUCTUS    INDUSTRIALES:    SEPARATE  SALE.  201 

WILLIS  v.  MOORE. 

59  Texas,  628.  —  1883. 

Moore  was  the  owner  of  a  cotton  plantation  which  he  mortgaged 
by  a  deed  of  trust  to  secure  a  debt  to  Reed  &  Smith.  Thereafter 
he  let  one  John  A.  Gill  into  possession  of  the  premises  to  work  the 
same  on  shares,  and  then  sold  his  own  share  of  the  proceeds  to  Alex. 
J.  Gill.  Later  on  and  while  the  crop  of  1881  was  ungathered  the  land 
was  sold  under  the  mortgage  and  bought  by  plaintiff  Willis.  A.  J. 
Gill  sold  the  crop  and  claimed  the  one-half  of  the  proceeds  under 
his  contract  with  Moore.  Willis  sues  for  this  money,  making  all  per- 
sons likely  to  be  interested  parties  to  the  action.  Judgment  for 
the  defendants.     Plaintiff  appeals. 

Stayton,  J.  —  The  deed  in  trust  made  by  Lewis  Moore  to  secure 
the  notes  executed  by  him  to  Reed  &  Smith,  having  been  duly 
recorded,  it  must  be  held  that  A.  J.  Gill  bought  the  interest  of  Lewis 
Moore  in  the  crop  upon  the  land  on  the  1st  of  August,  1881,  with 
notice  of  whatever  right  the  appellant,  by  virtue  of  the  transfer  of 
the  notes,  which  carried  with  them  as  an  incident  the  security  evi- 
denced by  the  trust  deed,  had  in  the  crops  then  standing  ungathered 
upon  the  land. 

There  might  be  some  difficulty  in  determining  the  true  relation 
which  existed  between  Lewis  Moore  and  J.  A.  Gill,  under  the  agree- 
ment of  date  December  24,  1877;  but  it  is  treated  by  appellant's 
counsel  as  a  partnership,  in  which,  for  their  mutual  benefit,  the  land 
was  cultivated  by  the  latter,  the  material  for  that  purpose  being  in 
part  furnished  by  each,  the  net  proceeds  to  be  equally  divided 
between  them.  This  is  probably  the  true  relationship  of  the  parties, 
rather  than  that  they  were  landlord  and  tenant,  and  we  will  so  con- 
sider them  in  disposing  of  the  case.  It  does  not  appear  when  the 
notes  to  Reed  &  Smith  matured,  but  it  is  found  that  they  were  due 
and  unpaid  on  the  8th  of  September,  1881,  at  which  time  the  substi- 
tuted trustee  sold  the  land,  and  thereby  the  appellant  became  the 
owner  thereof. 

The  question  for  our  decision  then  is,  is  the  purchaser  of  mort- 
gaged lands,  as  against  the  mortgagor  or  any  person  claiming  under 
him  by  a  purchase  of  the  crops,  entitled  to  such  crops  as  were  stand- 
ing ungathered  upon  the  land  at  the  time  of  his  purchase?  A.  J. 
Gill  does  not  necessarily  stand  in  the  same  relation  to  this  question 
as  would  Lewis  Moore  were  he  the  claimant. 

That  in  England  and  in  many  States  of  this  Union,  the  mortgagee 
is  deemed  the  holder  of  the  legal  title,  cannot  be  questioned;  and 


202      CONSTITUENTS    AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

that  upon  such  title  he  may  maintain  ejectment  against  the  mort- 
gagor. Where  such  is  the  rule,  many  decisions  are  to  be  found  in 
which  it  is  held  that  neither  the  mortgagor,  nor  a  tenant  under  him 
claiming  through  a  lease  made  after  the  execution  of  the  mortgage, 
is  entitled  to  carry  away  the  crops  growing  upon  the  mortgaged  land 
at  the  time  of  foreclosure  or  actual  entry  by  the  mortgagee;  and 
this  upon  the  theory  that,  from  the  date  of  the  mortgage,  the  mort- 
gagor is  but  a  tenant  at  sufferance;  and  that  a  lease  made  by  him, 
being  unauthorized,  works  a  disseisin.  [The  judge  then  quoted  at 
length  from  Lane  v.  King,  reported  herein  at  p.  197.  J 

In  the  case  of  Keech  v.  Hall,  1  Doug.  23,  in  reply  to  a  suggestion 
that  the  tenant  of  a  mortgagor  was  entitled  to  emblements,  Lord 
Mansfield  said:  "  I  give  no  opinion  upon  that  point;  but  there  may 
be  a  distinction,  for  the  mortgagor  may  be  considered  as  receiving 
the  rents  in  order  to  pay  the  interest  by  an  implied  authority  from 
the  mortgagee,  till  he  determine  his  will.  As  to  the  lessee's  right 
to  make  the  crop  which  he  may  have  sown  previous  to  the  determina- 
tion of  the  will  of  the  mortgagee,  that  point  does  not  arise  in  this 
case,  the  ejectment  being  for  a  warehouse;  but  however  that  may 
be,  it  would  be  no  bar  to  the  mortgagee's  recovering  in  ejectment. 
It  would  only  give  the  lessee  a  right  of  ingress  and  egress  to  take 
the  crop;  as  to  which,  with  regard  to  tenants  at  will,  the  text  of 
Littleton  is  clear." 

In  this  State  it  has  been  held,  from  an  early  day,  that  a  mortgage 
is  but  a  security  for  a  debt;  that  the  title  to  property  mortgaged 
remains  in  the  mortgagor,  and  with  it  the  right  of  possession,  which 
is  one  of  the  ordinary  incidents  of  title.  Duty  v.  Graham,  12  Tex. 
427;  Wright  v.  Henderson,  12  Tex.  44;  Wootton  v.  Wheeler,  22 
Tex.  338. 

Such  being  the  legal  effect  of  a  mortgage  in  this  State,  it  will  be 
readily  seen  that  the  foundation  upon  which  the  rights  of  mortgagees 
is  based  in  England  and  in  some  of  the  States  wholly  fails: 

1st.  There  the  paramount  title  is  held  to  be  in  the  mortgagee; 
here  the  paramount  title  remains  in  the  mortgagor,  and  no  estate 
passes  to  the  mortgagee  unless  through  foreclosure. 

2d.  There  the  right  to  the  immediate  possession  of  the  mortgaged 
property  vests  in  the  mortgagee,  with  the  consequent  right  to 
appropriate  the  fruits  and  revenues  without  liability  to  account, 
unless  called  upon  to  do  so  in  a  proceeding  to  enforce  the  equity  of 
redemption;  here  no  right  to  the  possession,  nor  to  the  fruits  and 
revenues  so  long  as  the  mortgage  stands  unforeclosed,  unless  under 
some  proceeding  peculiarly  equitable. 

3d.  There  the  mortgagor,  under  the  conflict  of  authority,  is  held 


IV.   2.]  FRUCTUS   INDUS!  RIALES.  203 

to  be  either  a  tenant  at  sufferance  or  a  tenant  at  will,  with  no  power 
to  do  aught  else  than,  under  the  strict  rules  of  the  common  law,  a 
tenant  with  the  feeblest  tenure  may  do,  a  lease  by  him  operating  as  a 
disseisin  of  the  mortgagee,  and  making  himself  and  his  lessee  tort 
feasors;  here  he  is  the  owner  of  the  fee,  if  such  be  his  estate  in  the 
land  which  he  mortgages,  recognizing  no  landlord,  neither  a  tenant 
at  will  nor  a  tenant  at  sufferance,  in  any  sense  in  which  these  terms 
can  be  legitimately  applied,  for  the  owner  cannot  be,  in  the  nature 
of  things,  the  tenant  of  any  one;  he  has  power  to  lease  without  dis- 
loyalty to  any  one,  his  lease,  if  made  after  mortgage,  subject,  how- 
ever, to  be  terminated  in  case  of  foreclosure   before  its  expiration. 

The  reason  sometimes  given,  why  a  mortgagor  should  not  be  per- 
mitted to  have  the  crops  still  standing  upon  the  land  at  time  of  fore- 
closure, is,  that  he  may  obtain  their  value  in  account  upon  bill  to 
redeem;  with  us  this  reason  can  have  no  effect,  for  there  is  no  such 
thing  in  our  practice  as  the  right  to  redeem  after  foreclosure,  which 
is  made  by  sale. 

The  crops  were  planted,  cultivated,  and,  in  fact,  must  have  been 
almost,  if  not  quite,  matured  before  the  sale  in  September,  and  while 
the  paramount  title  to  the  land  upon  which  they  grew  was  still  in 
Moore,  the  vendor  of  Gill,  Moore  sold  them.  The  element  of 
uncertainty,  in  so  far  as  Gill  was  concerned,  as  to  the  continuance 
of  title  in  his  vendor,  was  very  nearly  as  great  as  though  he  had  held 
as  tenant  at  will.  The  direction  of  the  creditor  to  sell  under  the 
deed  of  trust,  and  thereby  place  in  himself  or  some  other  person 
the  title  to  the  land  was  an  act  of  will,  without  the  exercise  of 
which  the  paramount  title  to  the  land  would  continue  in  Moore;  and 
even  such  exercise  of  the  will  would  not  necessarily  affect  that 
result;  for  Moore  might  be  able  to  pay  the  indebtedness  and  thereby 
effectually  prevent  the  divestiture  of  his  title. 

Where  the  mortgage  is  held  to  vest  the  title  in  the  mortgagee,  no 
such  elements  of  uncertainty  exist;  he  may  enter  whenever  he 
pleases. 

The  right  of  a  person  purchasing  under  a  foreclosure  of  a  mort- 
gage, where  it  is  held  that  the  mortgage  passes  no  estate,  but  is  a 
mere  security,  to  have  the  crops  on  the  land  at  time  of  foreclosure  is 
questioned  by  Mr.  Washburn.  1  Washburn  on  Real  Property,  124. 
The  reasons  for  the  rule  in  question  not  existing  here,  it  seems  to 
us  the  rule  must  be  held  not  to  exist. 

The  deed  of  trust  seems  to  evidence  the  fact  that  the  parties  con- 
templated, even  if  sale  was  made  under  it,  that  Moore  and  those 
claiming  under  him  should  not  at  once  surrender  the  land  to  the  pur- 
chaser, but  from  the  time  of  the  sale  should  attorn  to  the  purchaser, 


204      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

which  carries  with  it,  by  implication,  at  least  an  agreement  that, 
from  such  time,  Moore  or  his  assigns  should,  as  tenants,  recognize  the 
purchaser  as  the  landlord  and  pay  rent  for  the  land  from  the  time  of 
foreclosure. 

By  attornment  is  meant  "  the  act  of  recognition  of  a  new  landlord, 
implying  an  engagement  to  pay  rent  and  perform  covenants  to  him. 
The  word  is  taken  from  the  feudal  law,  where  it  signifies  the  transfer, 
by  act  of  the  lord  and  consent  of  the  tenant,  of  the  homage,  service, 
fealty,  etc.,  of  the  tenant  to  a  new  lord  who  had  acquired  the  estate." 
Abbott's  Law  Dictionary. 

It  is  true  that  the  trust  deed  provides  that  the  holding  shall  be  as 
tenant  at  sufferance;  but  there  can  be  no  such  thing  as  tenant  by 
sufferance  when  the  tenancy  is  the  result  of  agreement  such  as  is 
found  in  the  trust  deed,  with  reference  to  which  the  purchaser  must 
be  presumed  to  have  bought,  and  by  which  he  is  as  much  bound  as 
though  he  had  been  a  party  to  that  instrument;  and  in  the  absence 
of  something  in  the  agreement  evidencing  that  it  was  the  intention 
of  the  parties,  after  the  foreclosure,  to  have  their  rights  to  stand 
strictly  upon  the  relation  of  landlord  and  tenant  at  sufferance,  the 
parties  should  be  held  to  have  intended  that  such  a  tenancy  should 
exist  as  is  created  by  agreement;  at  least  a  tenancy  at  will,  which 
would  carry  with  it  the  right  to  the  crops  then  nearly  or  quite  matured, 
but  ungathered  at  time  of  foreclosure. 

A  tenancy  by  sufferance  "  is  of  such  a  nature  as  necessarily  implies 
an  absence  of  any  agreement  between  the  owner  and  the  tenant,  and 
if  express  assent  is  given  by  the  owner  to  such  possession,  the  tenancy 
is  thereby  instanter  converted  into  a  tenancy  at  will  or  from  year  to 
year,  according  to  the  circumstances."  Wood's  Landlord  and 
Tenant,  15.  It  matters  not  what  parties  may  designate  such  a 
tenancy. 

This  view  of  the  case  would  be  conclusive  of  the  question,  but 
there  is  another  view  of  the  case  which  is  equally  so. 

A  mortgage  being  simply  a  lien  to  secure  the  payment  of  a  debt,  it 
cannot  be  held  to  give  to  a  mortgagee  or  person  purchasing  under  it 
any  greater  right  to  ungathered  crops  standing  upon  the  mortgaged 
land  than  would  a  person  have  who  purchased  under  a  lien  acquired 
in  any  other  manner  prior  to  the  time  the  crop  was  planted,  or  the 
right  to  plant  it  accrued.     Hogsett  v.  Ellis,  17  Mich.  363. 

"  Crops,  whether  growing  or  standing  in  the  field  ready  to  be 
harvested,  are,  when  produced  by  annual  cultivation,  no  part  of  the 
realty.  They  are,  therefore,  liable  to  voluntary  transfer  as  chattels. 
It  is  equally  well  settled  that  they  may  be  seized  and  sold  under 
execution."      Freeman  on  Kxecutions,  113,  and  citations;  Benjamin 


IV.  2.]  FRUCTUS    INDUSTRIALES.  205 

on  Sales,  120.  Such  being  the  case,  if  there  be  nothing  in  the  con- 
tract of  the  parties  by  which  land  is  conveyed,  nor  in  the  circum- 
stances attending  the  sale,  evidencing  the  intention  of  the  parties 
that  crops  nearly  or  quite  matured  should  pass  with  land  sold,  it  is 
difficult  to  see  upon  what  principle  it  can  be  held  that  property 
strictly  personal  in  its  character  should  pass  by  an  instrument  which 
upon  its  face  purports  only  to  convey  land.  The  weight  of  authority, 
however,  is  to  the  effect  that  such  crops  will  pass  by  the  sale  of  the 
land  if  they  belong  to  the  owner  of  the  land  at  time  of  sale.  The 
application  of  this  rule  to  sales  made  under  mortgages,  having  only 
such  effects  as  mortgages  hers  are  held  to  have,  upon  crops  pro- 
duced many  years  after  the  mortgage  was  given,  need  not  further 
be  considered.  As,  however,  the  crops  are  separate  and  distinct 
in  their  nature  from  the  land  upon  which  they  grow,  the  ownership 
of  the  one,  even  on  mortgaged  property,  may  be  in  one  person,  and 
the  title  to  the  other  in  another;  and  whenever  crops  growing  or 
standing  upon  land  covered  by  a  lien  given  by  the  owner  of  the  land, 
or  acquired  by  law,  have  in  law  or  in  fact  been  severed  in  ownership, 
or  actually  severed  from  the  land  prior  to  sale  of  the  land  under  the 
lien,  title  thereto  will  not  pass  by  the  foreclosure  of  the  lien. 

A  mortgagor  is  entitled  to  sever  in  law  or  fact  the  crops  which 
stand  upon  his  land  at  any  time  prior  to  the  destruction  of  his  title 
by  sale  under  the  mortgage;  this  results  from  his  ownership  and 
consequent  right  to  the  use  and  profits  of  the  land,  and  the  mortgage 
is  taken  with  knowledge  of  that  fact. 

In  the  case  of  Meyers  Assignees  v.  White,  1  Rawle,  355,  it  appeared 
that  Meyers  had  executed  a  mortgage  upon  a  tract  of  land,  subse- 
quent to  which  he  had  a  crop  upon  the  land,  which,  with  the  land, 
he  assigned  for  the  benefit  of  his  creditors.  There  was  subsequently 
a  sale  under  a  foreclosure  of  the  mortgage,  and  the  purchaser  at  that 
sale  of  the  land  claimed  the  crop,  and  it  was  held  that  the  crop 
passed  to  the  assignees,  and  not  to  the  purchaser  under  the  fore- 
closure of  the  mortgage;  and  this  upon  the  ground  that  the  crop,  by 
conveyance  to  the  assignees,  had  been  severed.  The  court  said: 
"  As  there  is  no  difference  in  this  respect  between  a  judgment  and 
a  mortgage  creditor,  this  case  has  been  virtually  decided  in  Hambach 
v.  Yeates,  not  yet  reported,  in  which  it  was  held  that  grain  growing 
in  the  ground  is  personal  property,  and  might  be  levied  upon  and 
sold  as  such,  and  that  it  did  not  pass  by  a  sale  to  the  sheriff's  vendee. 
Peter  Meyers,  before  judgment  on  the  scire  facias,  had  parted  with 
his  interest  in  the  crop.  At  the  time  of  the  sale,  all  his  right  was 
vested  in  his  assignees  for  the  benefit  of  his  creditors." 

In   the   case   of   Stambaugh   v.   Yeates,    2   Rawle,    161,   Yeates   had 


2o6      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.  CH.  II. 

recovered  a  judgment  against  Kyrm  and  caused  a.  fieri  facias  to  be 
levied  upon  his  land  and  returned,  after  which  the  land  was  sown  in 
grain,  and  another  creditor  caused  a  levy  to  be  made  upon  the  grain 
under  a  judgment  which  he  had  obtained,  and  the  grain  was  sold; 
afterwards  the  land  was  sold  under  a  venditioni  exponas,  and  it  was 
held  that  the  creditor  who  levied  on  the  grain  was  entitled  to  the 
proceeds. 

These  cases  are  approved  and  applied  in  Bear  v.  Bitzer,  16  Pa.  St. 
178,  and  in  Groffv.  Levan,  Id.  179. 

All  of  these  cases,  as  well  as  the  case  of  Bittinger  v.  Baker,  29  Pa. 
St.  70,  were  considered  in  the  case  of  Metzgar  6°  Crugg  v.  Hershey, 
90  Pa.  St.  218,  and  were  reviewed  and  approved;  and  referring  to 
the  case  of  Bear  v.  Bitzer,  the  court  say:  "  The  latter  case  rules 
that  a  purchaser  of  land  at  sheriff's  sale  is  entitled  to  the  growing 
grain  thereon,  which  had  not  been  severed  before  the  sale.  There 
the  owner  of  the  land  which  was  sold  owned  the  crop,  and  there 
had  been  no  act  of  separation.  The  test  is,  whether  there  has  been 
a  severance  of  the  growing  grain;  if  so,  it  does  not  pass  to  him  who 
purchases  the  land  subsequent  to  the  severance;  if  not,  it  goes  with 
the  land."  All  these  cases  recognize  a  sale  by  the  owner  or  by 
judicial  process,  if  made  before  the  sale  of  the  land,  as  a  severance. 

The  Court  of  Appeals  of  Maryland,  in  Purner  v.  Piercy,  40  Md. 
223,  in  speaking  of  what  constitutes  severance,  say:  "  There  is 
nothing  in  the  vegetable  or  fruit  which  is  an  interest  in  or  concern- 
ing land,  when  severed  from  the  soil.  .  .  .  Whether  grain, 
vegetables,  or  any  kind  of  crop  [fructus  industrials),  the  product  of 
periodical  planting  and  culture;  they  are  alike  mere  chattels,  and  the 
severance  may  be  in  fact,  as  where  they  are  cut  and  removed  from 
the  ground,  or  in  law,  as  when  they  are  growing,  the  owner  in  fee 
of  the  land,  by  a  valid  conveyance,  sells  them  to  another  person,  or 
when  he  sells  the  land,  reserving  them  by  an  express  provision." 
To  the  same  effect  is  the  case  of  Titus  v.  Whitney,  1  Harrison,  85. 

In  Buckout  v.  S7vift,  27  Cal.  443,  it  was  held  that  a  house  which 
stood  on  mortgaged  land,  but  which  was  severed  from  the  land  sub- 
sequently by  a  storm,  did  not  pass  by  the  sale  under  foreclosure. 

There  is  no  error  in  the  judgment,  and  it  is  affirmed. 

Affirmed. 


SHERMAN  v.  WILLETT. 
42  New  York,  146.  —  1870. 
\JReported  herein  at  p.  209.] 


IV.  2.]  FRUCTUS    INDUSTRIALES.  20J 

c.  Devise  of  the  land, —  effect  on  crops  in  ground  at  testator  s  death. 

STALL  v.  WILBUR. 

77  New  York,  158.  —  1879. 

Earl,  J.  —  This  appeal  is  from  a  judgment  overruling  defendant's 
demurrer  to  plaintiff's  complaint.  Two  grounds  of  demurrer  are 
specified:  That  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action;  and  that  there  is  a  defect  of  parties  plain- 
tiff, in  that  Richard  E.  Wilbur  and  Erastus  C.  Wilbur  should  have 
been  joined  as  plaintiffs. 

The  complaint  alleges  that  Ephraim  Wilbur  died  February  24, 
1873,  leaving  a  will,  by  which  he  devised  to  Richard  E.  Wilbur, 
Erastus  C.  Wilbur,  Mary  J.  Harris,  and  to  the  defendant  and  the 
plaintiff,  a  farm,  subject  to  certain  advancements  to  the  devisees, 
which  advancements  had  been  satisfied  and  equalized  by  the  partition 
and  sale  of  the  farm;  that  the  will  had  been  admitted  to  probate; 
that  at  the  time  of  the  testator's  death  there  was  growing  on  the 
farm  a  crop  of  wheat,  put  in  on  shares  by  the  defendant,  under  an 
agreement  with  the  testator,  by  which  he  was  to  cultivate,  harvest 
and  thresh  the  crop,  and  deliver  to  the  testator  one-half  thereof  on 
the  farm;  that  after  the  testator's  death  the  crop  matured,  and  was 
harvested  and  threshed  by  the  defendant;  that  he  retained  posses- 
sion of  the  whole  of  the  crop,  and  although  the  plaintiff  had  often 
demanded  of  him  her  share  of  one-fifth  of  one-half  thereof,  the 
whole  crop  being  450  bushels,  and  her  share  under  the  will  being 
forty-five  bushels,  refused  to  deliver  to  her  her  share,  but  had  sold 
and  converted  the  same  to  his  own  use.  There  was  a  second  count, 
precisely  similar,  based  upon  an  assignment  to  the  plaintiff  of  the 
share  in  the  crop  of  Mary  J.  Harris. 

Growing  crops  are  not  part  of  the  real  estate  upon  which  they  are 
growing.  They  are  personal  property.  They  can  be  sold  and 
transferred  as  such.  Austin  v.  Saivyer,  9  Cow.  40.  They  can  be  taken 
upon  execution,  and  at  common  law  they  could  be  distrained  for 
rent.  Whipple  v.  Foot,  2  J.  R.  418.  At  common  law  also,  upon  the 
death  of  the  owner  of  the  real  estate,  they  passed,  not  to  the  heirs, 
but  to  the  executor  or  administrator,  to  be  administered  as  personal 
assets.  They  pass  with  a  conveyance  of  the  real  estate,  as  apper- 
taining thereto.  Tripp  v.  Hasceig,  20  Mich.  254.  At  common  law  \ 
also,  they  passed  to  the  devisee  of  the  real  estate,  not  as  a  parcel  I 
thereof,  but  upon  the  presumed  intention  of  the  devisor  that  he  who 
takes  the  land  should  also  take  the  crops  growing  thereon.     Gilbert 


203      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

on   Ev.  499;  Williams  on   Ex.  713;   Cooper  v.   Woolfitt,  2  Hurl.  &  N. 
122;    West  v.  Moore,  8  East,  339;  Bradner  v.  Faulkner,  34  N.  Y.  347. 

This  common-law  rule  was  somewhat  changed  by  the  Revised 
Statutes.  They  provide  that  growing  crops  "  shall  goto  the  execu- 
tors or  administrators,  to  be  applied  and  distributed  as  part  of  the 
personal  estate  of  their  testator  or  intestate,  and  shall  be  included 
in  the  inventory  thereof."  2  R.  S.  83. '  Under  this  provision,  the 
executor  takes  possession  of  the  growing  crops,  as  he  does  of  all 
other  personal  property.  But  he  takes  possession  only  for  the  pur- 
pose of  administration  according  to  law.  He  may  sell  it,  if  neces- 
sary, for  the  payment  of  debts  and  legacies.  But  when  the  land, 
upon  which  the  crop  is  growing,  has  been  devised  in  such  form  as 
to  convey  it  to  the  devisee,  then  the  crop,  in  my  opinion,  is  to  be 
put  upon  the  footing  of  a  chattel  specifically  bequeathed;  and  it 
cannot  be  sold  for  the  payment  of  general  legacies,  and  can  be  sold 
for  the  payment  of  debts  only  after  the  other  assets,  not  specifically 
bequeathed,  have  been  applied.     2  R.  S.  87.     *     *     * 

It  was  not  necessary  for  the  plaintiff  to  allege  that  there  were  no 
legacies  to  be  paid  under  the  will,  or  that  there  was  sufficient  other 
personal  property  to  pay  the  legacies,  as  this  property  specifically 
given,  as  shown  above,  could  not  be  taken  or  sold  to  pay  legacies. 
It  could  no  more  be  taken  for  such  a  purpose  than  other  personal 
property  specifically  bequeathed.     *     *     * 

As  stated,  the  defendant  is  in  no  better  position  than  if  he  had 
been  executor;  and  he  cannot  make  a  defense  which  an  executor 
could  not  make.  It  matters  not  whether  an  executor  was  appointed 
or  not.  The  facts  showed  that  the  plaintiff  was  entitled  to  this 
property,  and  that  she  is  the  only  person  injured  by  the  conversion 
thereof  by  the  defendant. 

The  complaint  is  not  defective  in  not  joining  as  plaintiffs  the  two 
other  co-tenants  named  in  the  demurrer.  As  to  such  property, 
separable  in  respect  to  quantity  and  quality  by  weight  or  measure, 
each  tenant  in  common  may  demand  of  his  co-tenant  having  pos- 
session of  the  whole  his  share,  and  upon  refusal  or  a  conversion  by 
such  co-tenant,  may  sue  in  his  own  name,  without  joining  all  the 
other  co-tenants.  Channon  v.  Lusk,  2  Lans.  211;  Lobdellx.  Stowell, 
37   How.  88;   s.  c.  51  N.  Y.  70. 

The  judgment  must,  therefore,  be  affirmed,  with  costs. 

Judgment  affirmed. 

'See  i  2712  N.  Y.  Code  Civ,  Pro.,    with  subds.  5  and  6. —  Ed, 


IV.  2.]  FRUCTUS    INDUSTRIALES.  209 

d.   Death  of  owner  hi  testate —  effect  on  crop  in  ground. 

SHERMAN  v.  WILLETT. 

42  New  York,  146.  —  1S70. 

Action  to  recover  the  value  of  a  crop  of  rye  alleged  to  have  been 
converted  by  Cornelius  Willett,  defendant's  testator. 

Elmer  Willett  owned  a  farm  on  which  he  planted  the  crop  in  ques- 
tion and  died  before  it  was  harvested.  He  had  mortgaged  the  farm 
to  one  Cornell  and  was  in  default  on  the  mortgage  when  the  crop 
was  planted.  Cornell  was  appointed  administrator,  and  as  such  sold 
the  growing  crop  to  plaintiff  at  auction.  Afterward,  and  before  the 
crop  was  gathered,  Cornell  foreclosed  his  mortgage  and  the  land  was 
sold  to  P.  K.  Willett,  who  conveyed  the  same  to  defendant's  testator. 
Notice  of  reservation  of  the  rye  was  given  at  the  foreclosure  sale. 
Defendant's  testator  was  present  at  both  sales,  went  into  possession 
of  the  premises,  and  would  not  permit  plaintiff  to  reap  the  rye,  but 
took  it  himself.  This  is  the  conversion  complained  of.  Judgment 
below  for  the  plaintiff.     Defendant  appeals. 

Earl,  Ch.  J. — The  crop  of  rye  was  personal  property,  and  as 
such  passed  to  the  personal  representatives  of  Elmer  Willett  as 
assets,  to  be  applied  and  distributed  as  part  of  his  personal  estate. 
2  R.  S.  82,  sec.  6;  Bradner  v.  Faulkner,  34  N.  Y.  347.  The  admin- 
istrators had  the  right  to  sell  it.  They  have  always  had  the  right  to 
sell  the  personal  property  of  their  intestate,  and  that  right  is  not 
limited  by  section  25,  2  R.  S.  87.  They  have  the  right  to  sell  for 
the  payment  of  debts  and  legacies,  and  also  for  the  purpose  of  dis- 
tribution. Willard  on  Executors,  268.  But  if  it  be  true,  as  claimed 
by  the  counsel  for  the  appellants,  that  they  have  the  right  only  to 
sell  personal  estate  so  far  as  may  be  necessary  for  the  payment  of 
debts  and  legacies,  they  are  not  required  to  get  an  order  of  the  sur- 
rogate authorizing  the  sale;  and  when  they  sell,  certainly,  in  the 
absence  of  any  proof  to  the  contrary,  it  will  be  presumed,  in  favor 
of  a  faithful  discharge  of  their  official  duty,  that  they  acted  legally, 
and  that  the  exigencies  existed  authorizing  the  sale.  Hence  there 
is  no  room  for  doubt,  that  the  sale  of  the  crop  of  rye  to  the  plaintiff 
on  the  21st  day  of  October,  1863,  by  the  administrators,  was  a  valid 
and  legal  sale. 

The  plaintiff,  by  this  sale,  took  his  title  to  the  rye  subject  to  the 
contingency  that  it  might  be  wiped  out  by  a  foreclosure  of  the  mort- 
gage given  by  the  intestate  upon  the  land  before  the  crop  of  rye  was 
sown.  Shepard  v.  Philbrick,  2  Denio,  174;  Simers  v.  Saltus,  3  Denio, 
214;  Lane  v.  King,  8  Wend.  584.     If  nothing  had  been  done  before 

LAW  OF  PROP.    IN  LAND —  14 


2IO      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

the  mortgage  foreclosure  or  at  the  mortgage  sale  affecting  the  title 
to  the  rye,  it  would  have  passed  to  the  purchaser  under  the  fore- 
closure sale.  Was  the  plaintiff's  title,  then,  under  the  facts  as  they 
exist  in  this  case,  cut  off  by  the  foreclosure  sale  ? 

While  a  mortgagee  is  not  bound  to  sell  the  mortgaged  premises 
in  parcels  unless  they  are  in  the  mortgage  described  in  parcels, 
Lamer  son  v.  Marvin,  8  Barb.  9;  Griswold  v.  Fowler,  24  Barb.  135,  yet 
I  have  no  doubt  he  may  do  so  where  the  premises  are  so  situated 
that  he  can  sell  in  parcels;  and  in  such  a  case,  when  he  has  sold 
land  enough  to  satisfy  his  mortgage,  he  need  sell  no  more;  and  in 
such  a  case,  if  any  one  can  complain  of  a  sale  by  parcels,  and  seek 
to  avoid  the  foreclosure,  it  certainly  cannot  be  a  purchaser,  but  must 
be  some  one  at  the  time  interested  in  the  equity  of  redemption. 
When  it  is  admitted  that  a  mortgagee  can  release  a  portion  of  the 
premises  and  sell  the  remainder,  although  they  are  described  as  a 
whole  in  the  mortgage,  I  do  not  see  why  he  may  not  sell  the  same 
portion  before  releasing  any.  In  this  case,  the  mortgage  was  a  lien 
upon  the  whole  premises,  including  the  rye,  and  at  the  time  of  sale, 
the  mortgagee  announced  that  he  would  not  sell  the  rye,  but  would 
sell  the  balance.  The  purchaser  knew  this,  and  bid  with  this  under- 
standing. The  rye  was  not  sold.  The  purchaser  did  not  buy  it. 
How  can  he  claim  it?  If  the  sale  was  void  because  not  regularly 
made,  and  because  the  entire  premises  were  not  sold,  then  certainly 
the  defendant  has  no  standing  upon  which  he  can  base  any  claim  to 
the  rye.  Hence,  if  I  am  right  so  far,  the  plaintiff's  title  to  the  rye 
is  good.  But  I  go  further  and  hold  that  this  title  is  good  also  upon 
the  doctrine  of  estoppel.  Zina  Cornell,  the  administrator,  was  also 
the  mortgagee.  He  sold  this  rye  to  the  plaintiff,  professing  to  give 
him  a  good  title  free  from  the  lien  of  his  mortgage.  He  induced 
him  to  buy  and  pay  for  the  rye.  After  making  this  sale,  he  was 
estopped  both  as  mortgagee  and  as  representing  the  intestate,  the 
mortgagor,  from  setting  up  any  title  or  claim  against  his  own  sale. 
The  defendant  holds  under  the  mortgagor  and  mortgagee,  and  he 
has  no  greater  title  than  they  could  give  him;  and  when  his  grantor 
purchased  at  the  foreclosure  sale  he  was  also  present,  and  they  both 
knew  of  the  facts  constituting  the  estoppel  and  bid  recognizing  the 
rights  of  the  plaintiff.      Hence  he  is  equally  bound  by  the  estoppel. 

It  is  true  that  the  affidavits  of  foreclosure,  as  filed,  show  a  sale  of 
the  entire  premises  without  any  reservation;  but  these  affidavits  are 
not  conclusive  upon  the  plaintiff,  who  was  not  a  party  to  the  fore- 
closure. They  are  by  statute  only  made  presumptive  evidence  of 
the  facts  contained  in  them.  Any  person,  unless  it  be  the  mort- 
e,  and  those  1  [aiming  under  him,  can  controvert  them  by  parol 


IV.  2.]  FRUCTUS   INDUSTRIALES:    SEPARATE  SALE.  211 

evidence.  Arnot  v.  McClure,  4  Denio,  41.  In  the  case  cited,  Judge 
Bronson  says:  "  As  the  affidavits  are  an  ex  parte  proceeding,  and 
are  only  made  presumptive  evidence  of  the  facts  therein  contained, 
there  can  be  no  doubt  that  they  may  be  controverted  by  the  mort- 
gagor and  those  claiming  under  him.  All  or  any  of  the  facts  stated 
in  the  affidavits  may  be  disproved." 

The  judgment  should  be  affirmed. 


e.  Separate  sale  of  crops  in  ground?- 
SEXTON  v.  BREESE. 
135  New  York,  387.  —  1892. 

Gray,  J.  —  The  action  was  in  replevin  for  the  purpose  of  recover- 
ing a  crop  of  wheat  which  had  been  harvested  from  a  farm,  and  the 
question  presented  relates  to  the  respective  rights  thereto  of  the 
plaintiff,  as  mortgagee  of  the  farm,  and  claiming  to  be  in  possession 
as  such,  and  of  the  defendant,  as  the  vendee  of  the  growing  crop,  under 
a  bill  of  sale  from  the  owner  and  mortgagor.  The  mortgage  was  exe- 
cuted and  delivered  in  1875  to  the  plaintiff's  firm,  as  a  collateral 
security  for  any  liabilities  which  the  mortgagor  might  thereafter 
incur,  and  was  to  become  due,  by  its  terms,  one  month  after  demand. 
In  February,  1879,  the  owner  of  the  farm  left  the  place,  allowing 
the  defendant,  to  whom  he  was  in  debt  for  moneys  borrowed,  to 
have  possession  of  the  farm  and  to  work  it  for  himself. 

In  the  following  month  he  sold  to  the  defendant  the  standing  or 
growing  crop  of  wheat  in  question,  and  which  he  had  himself  sowed 
in  the  previous  autumn;  the  bill  of  sale  giving  to  defendant  the  right 
to  secure  and  harvest  the  crop.  In  the  following  month  of  April, 
the  owner  of  the  farm  executed  and  delivered  a  certain  instrument 
to  the  plaintiff,  wherein  he  authorized  him  "  to  take  possession  of 
my  farm  at  Macedon  and  to  rent  same  and  after  paying  all  expenses 
to  apply  the  net  income  upon  my  indebtedness  to  him."  He  entered 
upon'  the  farm  under  this  instrument,  and  it  is  his  claim  that  thereby 
he  become  mortgagee  in  possession.  When  the  wheat  had  ripened 
the  defendant  went  upon  the  farm  to  cut  it,  but  was  prevented  from 
doing  so  by  the  plaintiff,  who  proceeded  to  harvest  it  for  himself. 
Before,  however,  the  plaintiff  had  gotten  in  the  wheat  from  the  field, 
the  defendant  entered,  early  in  the  morning,  and  carried  it  off. 
This  action  then  resulted. 

1  See  case  last  reported. —  Ed. 


212      CONSTITUENTS   AND    INCIDENTS    OF    LAND.      [PT.  II.   CH.  II. 

I  do  not  think  that  the  instrument,  under  which  the  plaintiff 
entered  into  the  possession  of  this  farm,  had  the  effect  of  making  the 
possession  that  of  the  mortgagee,  as  that  is  technically  understood. 
Its  very  terms  seem  to  preclude  that  idea;  for  the  possession,  which 
the  plaintiff  was  authorized  to  take,  was  qualified  and  limited  to  the 
exercise  and  enjoyment  of  certain  prescribed  acts;  namely,  to  rent  it 
and  to  apply  the  net  income  upon  the  indebtedness.  The  mortgage 
had  not  become  due,  inasmuch  as  there  had  been  no  demand  for  the 
payment  of  any  indebtedness  accrued  and  to  be  secured  by  it,  or  at 
any  rate,  such  a  demand  as  the  nature  of  this  mortgage  required. 
But  I  do  not  think  it  very  important  to  our  decision  whether  we 
hold  that  the  possession  was  technically  that  of  a  mortgagee,  or  one 
authorized  by  and  assumed  under  the  writing  referred  to.  Although, 
if  that  question  should  be  deemed  essential,  I  should  regard  the 
possession  taken  by  plaintiff  through  this  instrument  of  April,  1879, 
as  not  equivalent  to  a  possession  by  surrender  of  the  land  from  the 
mortgagor.  In  this  State  it  must  be  regarded  as  settled  by  the  cases 
that  the  title  of  the  mortgagor  to  the  land  is  not  changed  by  the 
mortgage.  It  remains  as  before;  while  the  mortgagee  has  in  the 
mortgage  a  security  for  the  mortgagor's  debt,  which  is  impressed 
upon  the  lands  described  and  incumbers  them  with  the  burden  of 
the  debt.  It  must  also  be  regarded  as  settled  that  even  if  the  mort- 
gagee goes  into  possession  of  the  premises  by  a  surrender  of  them 
from  the  mortgagor,  the  legal  title  or  fee  still  remains  in  the  mort- 
gagor; and  what  the  mortgagee  thereby  acquires  is  the  possession  of 
the  pledged  property.  He  holds  it  then  for  the  purpose  of  paying 
off  the  debt,  with  which  it  was  incumbered,  but  takes  no  estate  in 
the  land.  Kortright  v.  Cady,  21  N.  Y.  343;  Trimm  v.  Marsh,  54  Id. 
599.  In  Trimm  v.  Marsh,  the  question  of  the  effect  upon  the  title, 
where  the  mortgagee  acquires  the  possession  of  the  land,  was  quite 
fully  discussed  upon  theory  and  in  the  light  of  earlier  cases,  and  the 
decision  should  be  considered  as  settling,  and,  as  I  think,  quite  in 
accordance  with  the  reason  of  the  thing,  that  a  mortgagee,  who 
merely  is  let  into  the  possession  of  the  mortgaged  land  does  not 
acquire  the  legal  title. 

If  we  assume  that  the  plaintiff  was  in  possession  of  the  land  as  by 
an  actual  surrender  from  the  mortgagor,  his  rights  in  its  use  were 
subject  to  the  previous  disposition  made  of  the  growing  crop  of 
grain  by  the  owner  of  the  land.  He  had  planted  the  crop  and  it 
was  perfectly  competent  for  him  to  dispose  of  it  while  he  held  the 
title  to  the  land.  Though,  in  a  sense,  a  growing  crop  of  grain  is  a 
part  of  the  real  estate,  it,  nevertheless,  possesses  the  characteristics 
of  a  chattel  and  is  salable  and  transferable  as  other  personal  property 


IV.  2.]  FRUCTUS    INDUSTRIALES:    SEPARATE  SALE.  213 

is,  and  may  be  taken  upon  execution  and  sold  in  discharge  of  a 
judgment  debt.  Whipple  v.  Foot,  2  Johns.  422;  Stall  v.  Wilbur,  77 
N.  Y.  158. 

The  relation  which  growing  crops  bear  to  the  land  has  been  fre- 
quently the  subject  of  discussion  in  the  courts  and  is  in  some  respects 
a  peculiar  one.  They  pass  to  the  grantee  in  a  conveyance  of  the 
land  as  appertaining  thereto.  Wintermutc  v.  Light,  46  Barb.  283; 
Stall  v.  Wilbur,  supra.  And  equally  upon  a  sale  in  foreclosure  of  a 
mortgage,  the  purchaser  would  acquire  with  the  title  to  the  land 
the  right  to  the  growing  crops.      Shepard  v.  Philbrick,  2   Denio,  174. 

In  England  growing  crops,  which  were  fructus  industriales,  that  is 
to  say,  annual  products  of  a  tillage  of  the  earth  by  the  labor  of  the 
occupier,  have  been  regarded  as  chattels,  quite  independent  of  the 
land.  Any  supposed  confusion  in  the  decisions,  with  respect  to 
their  relation  to  the  land,  arose  rather  in  the  consideration  of  the 
question  of  the  validity  of  their  transfer  by  parol,  under  the  statute 
of  frauds,  than  in  any  difference  in  opinion  as  to  their  being  chattels. 

Distinctions,  of  course,  were  made  between  growing  crops  of  grain 
and  trees,  the  fruits  of  trees  and  perennial  plants.  Crosby  v.  Wads- 
worth,  6  East,  602;  Evans  v.  Roberts,  5  B.  &  (J.  829;  Jones  v.  Flint, 
10  A.  &  E.  753;  Rodwell  v.  Phillips,  9  M.  &  W.  501. 

Those  views,  as  to  the  legal  relation  of  these  annual  products  of  the 
land  to  the  land  itself,  obtained  and  were  held  here  in  the  early  cases 
of  Whipple  v.  Foot,  supra;  Shepard  v.  Philbrick,  supra;  Green  v.  Arm- 
strong,  1  Denio,  550;  and  more  recently  in  the  case  of  Stall  v.  Wilbur, 
to  which  I  have  referred.  Probably  the  rights  of  a  third  person  to 
the  growing  crops  of  grain,  under  a  contract  of  purchase  with  the 
owner,  would  be  annulled  by  the  sale  upon  the  foreclosure  of  a  mort- 
gage of  the  land,  according  to  the  decisions  in  Shepard  v.  Philbrick, 
supra,  and  Lane  v.  .King,  8  Wend.  584,  for  then  the  transfer  of  the 
title  to  the  mortgaged  premises  would  carry  with  it  to  the  purchaser 
a  paramount  title  to  the  growing  crop.  But,  in  the  present  case, 
that  proposition  is  not  before  us  and  the  title  of  the  mortgagor  to 
the  mortgaged  land  was  not  divested  or  transferred  to  the  mort- 
gagee with  the  possession.  The  defendant,  Breese,  was  the  pur- 
chaser of  the  growing  crop  of  wheat  and,  upon  its  becoming  ripe  for 
harvesting,  as  well  under  the  express  authority  of  his  bill  of  sale,  as 
without  it,  impliedly,  he  had  the  right  of  ingress  to  gather  and  to 
carry  it  away.      Stewart  v.  Doug/ity,  9  Johns.  108. 

His  vendor's  legal  title  to  the  land  had  not  ceased,  and  the  fact  of 
the  mere  possession  having  changed  to  another  person,  was  not 
sufficient  to  annul  Breese's  contract,  and  was,  consequently,  inopera- 
tive upon  his  right  to  enter  and  carry  away  the  ripened  wheat. 


214      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.   CH.  II. 

We  think  the  conclusion  reached  by  the  General  Term  that  the 
defendant  was  entitled  to  the  verdict  at  circuit  was  correct  and,  as 
no  other  error  appears  from  the  record,  their  order  denying  plain- 
tiff's motion  for  a  new  trial  upon  his  exceptions,  and  directing  judg- 
ment on  the  verdict,  should  be  affirmed  with  costs. 

Order  affirmed  and  judgment  accordingly. 


f.  Levy  of  execution  on  growing  crops. 

PARHAM  v.  THOMPSON. 

2  J.  J.  Marshall  (Ky.j,  159.  —  1829. 

Robertson,  J.  —  The  only  question  which  it  is  necessary  to  decide 
in  this  case,  is  whether  a  creditor  who  has  a  fieri  facias  against  the 
estate  of  his  debtor,  is  guilty  of  a  trespass,  by  entering  on  land  in 
the  possession  of  the  debtor,  for  the  purpose  of  assisting  the  officer 
to  levy  the  execution  on  the  growing  crops,  and  afterwards  entering, 
to  bid  at  the  sale  of  the  crop,  before  it  is  ripe,  or  is  secured.  &  fieri 
facias  may  be  levied  on  a  growing  crop;  it  is  a  chattel.  It  is  "  fructus 
industrialist  which  goes  to  the  executor.  2  Tidd's  Pra.  917;  Gill, 
Executor,  19;   1  Salk.  368;  2  Bl.  Com.  428;  Toller,  204. 

Corn  growing,  passes  to  the  devisee  of  the  personal  property,  and 
not  to  the  devisee  of  the  land.  Toller,  204;  Swin.  933.  It  passes 
by  parol  contract.  Roberts  on  Frauds,  126;  Noble  v.  Smith  et  a/., 
2  Johnson's  Rep.  52;   1  Ld.  Raym.  182;  Bui.  Ni.  Pri.,  34. 

Consequently,  although  it  may  be  inconsistent,  and  injurious  to 
sell  growing  corn,  and  therefore,  the  general  practice  is  to  wait  after 
the  levy  until  it  shall  be  gathered;  yet  the  legal  right  to  sell  it  before 
it  shall  be  gathered,  results  from  its  personal  character  and  the  right 
to  levy  on  it.  See  Tidd,  91,  and  Whipple  v.  Foote%  2  Johnson's 
Rep.  422.  The  argument  " ab  inconvenienti"  applies  no  more  to  this 
case  than  it  would  to  the  mere  right  to  sell  anything  else  which  is 
immature;  as  a  colt  or  a  pig. 

The  creditor,  therefore,  is  not  a  trespasser,  by  entering  with  the 
sheriff,  to  levy  and  to  sell;  nor  for  directing  the  sale,  and  purchasing 
the  crop,  if  the  process  be  regular,  the  judgment  valid,  and  the  sale 
fair,  as  they  all  seem  to  have  been  in  this  case. 

Wherefore,  us  in  this  case  the  court  decided  according  to  this 
opinion    the  judgment  of  the  Circuit  Court  is  affirmed. 


IV.  2.]  FRUCTUS    INDUSTRIALES:    EXECUTIONS.  215 

CRADDOCK  v.  RIDDLESBARGER. 
2  Dana  (Ky.),  205.  —  1834. 

Robertson,  Ch.  J.  — Riddlesbarger  having  obtained  a  judgment 
against  Craddock,  for  damages  for  the  conversion  of  a  field  of  grow- 
ing corn,  which  he  (Riddlesbarger)  had  bought  at  a  sale  under  a 
fieri  facias,  as  the  property  of  one  of  the  defendants  in  the  execu- 
tion, Craddock  now  urges  a  reversal  of  the  judgment,  and  relies  on 
three  grounds:  —  First,  that  there  was  no  judgment  that  authorized 
the  execution;  second,  that  growing  corn  was  not  liable  to  sale  in 
virtue  of  a  fieri  facias ;  third,  that  the  Circuit  Court  erred  in  reject- 
ing evidence  offered  by  Craddock,  and  in  instructing  the  jury,  and 
in  withholding  instructions. 

As  we  are  of  the  opinion,  that  the  judgment  and  the  replevin 
found  exhibited  in  the  record,  authorized  the  execution,  and  suffi- 
ciently correspond  with  it,  and  with  each  other,  for  every  purpose 
of  reasonable  certainty,  we  shall,  without  a  more  particular  notice 
of  the  first  ground,  proceed  to  the  consideration  of  the  second  and 
third  grounds. 

Second.  Although  such  annual  productions  or  fruits  of  the  earth 
as  clover,  timothy,  spontaneous  grasses,  apples,  pears,  peaches, 
cherries,  etc.,  are  considered  as  incidents  to  the  land  in  which  they 
are  nourished,  and  are,  therefore,  not  personal,  nevertheless  every- 
thing produced  from  the  earth  by  annual  planting,  cultivation  and 
labor,  and  which  is,  therefore,  denominated  for  the  sake  of  contra- 
distinction, fructus  industrials,  is  deemed  personal,  and  may  be  sold, 
as  personalty,  even  whilst  growing  and  immature.  And  the  pur- 
chaser of  such  an  article  in  such  a  growing  state  will  have  the  conse- 
quential right  of  ingress  and  egress,  for  purposes  of  cultivation, 
preservation  and  removal,  though  he  will  have  acquired  no  interest 
in  the  land  itself,  nor  any  other  control  or  dominion  over  it,  than 
such  as  may  be  necessarily  incident  to  his  right  to  the  growing 
fructus.  Parham  v.  Thompson,  2  J  J.  Marshall,  159,  and  the 
authorities  therein  cited;  and  also  Eaton  v.  Southby,  2  Willis,  131. 

The  authorities  leave  no  pretext  for  doubting  that  growing  corn 
is  a  chattel  and  as  such,  may  be  sold  by  the  owner,  or  taken  by  an 
officer  in  virtue  of  a  process  of  fieri  facias.  The  only  doubt  which 
has  been  intimated,  is  as  to  the  proper  time  of  selling  under  an  exe- 
cution. But,  though  some  have  expressed  the  opinion,  that  the 
sale  should  be  postponed  until  after  the  corn  shall  have  been  matured 
and  severed  from  the  land,  and  though  such  a  course  might  often  be 
advantageous  to  all  parties  concerned,  still  it  seems  to  us  that,  prior 


2l6      CONSTITUENTS   AND    INCIDENTS    OF   LAND.      [l'T.  II.   CII.  II. 

to  an  act  of  the  last  Legislature,  the  law  conceded  the  right  to  sell 
the  corn  in  the  condition  in  which  it  was  when  the  execution  was 
levied  on  it.  The  right  to  levy  implies  the  right  to  sell,  as  soon  as 
legal  notice  can  be  published  of  the  time  and  place  of  sale,  and  of 
the  thing  to  be  sold.  Was  it  the  duty  of  an  officer  to  keep  posses- 
sion of  growing  corn  for  months  after  his  levy,  and,  in  the  meantime, 
cultivate  and  gather  it,  or  be  responsible  for  its  deterioration  in  con- 
sequence of  non-cultivation,  or  for  the  wasting,  or  destruction,  or 
abduction  of  it  by  the  owner,  or  by  other  persons?  Or  was  all  such 
hazard  and  burthen  devolved  on  the  creditor?  What  might  have 
been  most  expedient  in  a  given  case,  or  what  the  sheriff,  (with  the 
concurrence  of  the  creditor  and  debtor  or  either  of  them,)  might 
have  done,  is  far  different  from  what  he  had  the  power  to  do  in 
virtue  of  his  legal  authority.  A.nd,  not  doubting  his  power  to  sell 
growing  corn,  we  must  decide  accordingly.  It  is  our  duty  to 
declare,  not  to  give,  the  law.     *     *     * 

Judgment  affirmed. 


PENHALLOW  v.  DWIGHT. 

7  Massachusetts,  34.  —  1810. 

Trespass  for  breaking  and  entering  plaintiff's  close,  and  cutting 
down  and  carrying  away  his  corn  "  thereon  growing  and  then  fully 
ripe  and  fit  to  be  gathered."  Defendant  justified  under  an  execu- 
tion against  plaintiff. 

Curia.  —  As  the  defendant  had  the  right,  and  indeed  was  obliged 
by  the  duty  of  his  office,  to  enter  the  close  of  the  plaintiff,  and  to  seize 
any  personal  property  of  the  plaintiff,  whereby  he  might  satisfy  the 
excution  he  then  held  against  the  plaintiff;  the  only  question  is 
whether  corn,  then  in  a  proper  state  to  be  gathered,  but  found 
standing,  might,  lawfully  be  cut  down  and  disposed  of  to  raise  the 
money  due  upon  the  execution.  And  we  have  no  doubt  that  corn 
or  any  other  product  of  the  soil,  raised  annually  by  labor  and  cul- 
tivation is  personal  estate;  and  would  go  to  the  executor,  and  not 
to  the  heir,  on  the  decease  of  the  proprietor.  It  is  therefore  liable 
to  be  seized  on  execution,  arid  may  be  sold  as  other  personal  estate. 

An  entry  for  the  purpose  of  taking  unripe  corn,  or  other  produce, 
which  would  yield  nothing,  but  in  fact  be  wasted  and  destroyed  by 
tin-  very  a<  t  <>f  severing  it  from  the  soil,  would  not  be  protected  by 
this  decision. 

Let  the  defen  hint   have  judgment  for  his  costs. 


IV.  2.]  FRUCTUS   INDUSTRIALES:    EXECUTIONS.  21 J 

ELLITHORPE  v.  REIDESIL. 
71  Iowa,  315.  —  1887. 

Reed,  J.  *  *  *  Plaintiff  acquired  title  to  the  premises  on  the. 
sixth  of  July,  1885,  by  deed  from  the  Iowa  Railroad  Land  Company. 
In  1880  that  company  had  executed  a  contract  for  the  sale  of  the 
land  to  W.  R.  Able.  M.  R.  Elitlhorpe  became  the  owner  of  this 
contract  by  assignment,  and  he  went  into  possession  of  the 
premises  in  1884.  He  cultivated  the  land  during  that  year,  and 
raised  a  crop  thereon  during  that  year.  He  also  planted  the 
crops  in  question  in  1885.  At  some  time  before  the  date  of  the 
deed  from  the  land  company,  he  assigned  the  contract  to  plaintiff, 
who  paid  the  balance  of  the  purchase  money  due  thereon  and 
received  the  conveyance;  but  the  date  of  that  assignment  was  not 
shown.  The  defendant,  Reidesil,  recovered  a  judgment  against 
M.  R.  Ellithorpe  in  Justice's  Court,  on  which  an  execution  was  issued 
on  the  sixth  of  June,  1885.  The  constable  to  whom  this  execution 
was  directed  attempted  to  levy  the  same  on  the  crops  growing  on 
the  premises,  and  on  the  sixth  of  July  following  he  offered  them  for 
sale  under  the  execution,  and  they  were  bid  in  by  defendant  Lein- 
miller.  At  the  time  of  the  levy  and  sale,  the  crops  were  all  imma- 
ture, some  of  them  having  been  planted  but  a  short  time  before  the 
levy.  Leinmiller  entered  upon  the  premises  some  three  or  four 
weeks  after  this  purchase,  and  harvested  a  portion  of  the  crop,  and 
removed  a  small  portion  of  the  grain  from  the  premises;  and  these 
are  the  acts  of  which  plaintiff  complains. 

Plaintiff  claimed  that  his  purchase  of  the  contract  was  made 
before  the  sale  on  execution;  but,  as  stated  above,  the  date  of  the 
assignment  was  not  proven.  Nor  did  he  prove  that  Leinmiller  had 
any  notice  of  his  purchase  when  he  bid  in  the  crops  at  the  execution 
sale.  The  Circuit  Court  ruled  that,  as  Leinmiller  had  no  notice 
of  plaintiff's  ownership  of  the  premises  when  he  bid  in  the  prop- 
erty, he  acquired  title  to  it  and  was  not  guilty  of  a  trespass  in 
gathering  the  crops  after  they  matured.  This  ruling  cannot  be 
sustained.  There  is  no  pretense  that  constable  had  any  author- 
ity or  power  to  levy  on  or  sell  any  interest  in  the  real  estate. 
Nor  is  it  claimed  that  he  did  so.  The  whole  proceeding  was 
on  the  theory  that  the  crops  were  personal  property,  and  could 
be  levied  on  and  sold  as  such.  But  while  they  remained  immature, 
and  were  being  nurtured  by  the  soil,  they  were  attached  to  and 
constituted  part  of  the  realty.  They  could  no  more  be  levied  upon 
and  sold  on  execution  as  personalty  than  could  the  trees  growing 


2l8      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [FT.  II.  CH.  II. 

upon  the  premises.  The  doctrine  is  elementary,  and  it  has  fre- 
quently been  declared  by  this  court.  See  Downard  v.  Graff,  40 
Iowa,  597;  Burleigh  v.  Piper,  51  Id.  649;  Hecht  v.  Dettman,  56  Id. 
679;  Martin  v.  K/iapp,  57  Id.  336.  The  case  is  very  different  in  its 
facts  from  Nulkolls  v.  Pence,  52  Id.  581.  In  that  case,  although  the 
crop  was  immature  when  plaintiff  purchased  the  premises,  it  was 
mature  when  the  execution  against  the  vendor  was  levied  upon  it 
and  it  was  sold;  and  it  was  held  that  it  was  then  personalty;  and  as 
the  purchaser  at  the  execution  sale  had  no  notice  of  the  change  of 
ownership,  he  acquired  title  by  his  purchase.  But  in  the  present 
case  it  pertained  to  the  realty  when  the  attempt  to  sell  it  was  made. 
The  purchaser,  therefore,  acquired  nothing  by  his  purchase.  Con- 
ceding that  the  plaintiff  had  no  interest  in  the  premises  before  the 
execution  of  the  deed  from  the  land  company,  as  the  crops  were  then 
immature,  they  passed  to  him  by  the  conveyance  as  part  of  the 
realty.  Reversed. 


V.  Fixtures.1 

1.  Necessity  for  "Annexation,"  Either  Mediately  or 
Immediately,  to  the  Soil. 

a.  Actual  and  constructive  annexation. 

WALKER  v.  SHERMAN. 

20  Wendell  (N.  Y.),  636.  —  1839. 

Partition.  The  parties  were  tenants  in  common  of  a  woolen 
factory,  a  house,  barn  and  twenty  acres  of  land.  The  commissioners 
to  make  partition  failed  to  take  into  account  certain  articles  of 
machinery,  regarding  them  as  personal  property.  Defendants  allege 
this  as  error  and  move  to  set  aside  the  report. 

By  the  Court,  Cowen,  J.  — Judging  from  the  affidavits  before  us, 
the  machinery  which  the  commissioners  excluded  as  being  personal 
property,  was  such  only  as  was  movable,  and  in  no  way  physically 
attached  to  the  factory  or  land,  though  it  had  been  used  for  several 
years,  as  belonging  to  the  factory,  and  was  as  material  to  its  per- 
formance in  certain  departments  of  its  work,  as  the  machinery  which 

1  "A  fixture  may  be  defined  as  an  article  or  structure  which,  in  itself  personal 
property,  has  been  annexed,  or  has  become  accessory  to  real  estate,"  Chase's 
Bla<  kstone  |  jrd  <•<!.),  n.  p.  223.  As  thus  defined  "  fixtures  "  are  either  "  remov- 
able "  or  "irremovable."  For  other  definitions  see  cases  reported  herein. 
on  houses  .- l  1 1 <  1  other  structures  built  on  the  land  are  included  here  under 
the  head  of  "  fixtures."  —  Ed. 


V.  i.]  FIXTURES:    ANNEXATION.  219 

was  actually  affixed.  Did  the  commissioners  err  in  disregarding  the 
movable  machines?  That  is  the  only  question.  If  they  were  right, 
the  equality  and  justice  of  the  partition  are  apparent  upon  the 
proofs;  if  wrong,  the  report  should  be  set  aside,  and  the  commis- 
sioners be  required  to  review  their  decision. 

The  question  is  one  between  tenants  in  common,  the  owners  of 
the  fee;  and  is,  we  think,  to  be  decided  on  the  same  principle  as 
if  it  had  arisen  between  grantor  and  grantee,  or  as  if  partition  had 
been  effected  by  the  parties  through  mutual  deeds  of  bargain  and 
sale.  As  between  such  parties,  the  doctrine  of  fixtures  making  a 
part  of  the  freehold,  and  passing  with  it  is  more  extensively  applied 
than  between  any  others.  As  between  tenant  for  life  or  years  and 
reversioner  or  remainderman,  all  erections  by  the  former  for  the 
purposes  of  trade  or  manufactures,  though  fixed  to  the  freehold,  are 
considered  as  his  personal  property,  and  as  such,  may  be  removed  by 
him  during  his  term,  or  be  made  available  to  his  creditors  on  a  fieri 
facias.  On  his  death,  they  go  to  his  executors  or  administrators; 
yet  by  a  conveyance,  they  pass  to  the  vendee.  Fructus  industriales 
it  is  well  known,  always  go,  on  the  owner's  death,  to  the  executor 
or  administrator,  not  to  the  heir;  whereas,  they  are  carried  by  a 
devise  or  other  conveyance  of  the  land,  to  the  devisee  or  vendee. 
Spencer  s  Case,  Winch.  51;  Austin  v.  Sawyer,  9  Cow.  39;  Wilkins  v. 
Vashbinder,  7  Watts,  378,  and  cases  cited  overruling  Smith  v.  Johnston, 
1  Pa.  471,  contra.  The  general  rule  is,  that  anything  of  a  personal 
nature,  not  fixed  to  the  freehold,  cannot  be  considered  as  an  inci- 
dent to  the  land,  even  as  between  vendor  and  vendee.  The  English 
cases  on  this  subject  are,  most  of  them,  well  collected  and  arranged 
in  Amos  &  Ferard,  Law  of  Fixtures,  p.  1,  ch.  1,  and  p.  180,  ch.  5, 
Am.  ed.  1830.  For  some  still  later,  see  Gibbons,  Law  of  Fixtures, 
15,  ch.  2.  The  American  cases  are  mostly  collected  in  2  Kent, 
Com.  345,  3d  ed.,  n.  c.  I  have  said  that,  as  a  general  rule,  they 
cannot  be  considered  an  incident  unless  they  are  affixed.  This 
is  not  universally  so.  A  temporary  disannexing  and  removal, 
as  of  a  millstone  to  be  picked,  or  an  anvil  to  be  repaired,  will 
not  take  away  its  character  as  a  part  of  the  freehold.  Locks 
and  keys  are  also  considered  as  constructively  annexed;  and 
in  this  country  it  must  be  so  with  many  other  things  which  are 
essential  to  the  use  of  the  premises.  Our  ordinary  farm  fences  of 
rails,  and  even  stone  walls,  are  affixed  to  the  premises  in  no  other 
sense  than  by  the  power  of  gravitation.  It  is  the  same  with  many 
other  erections  of  the  lighter  kind  about  a  farm.  I  shall  hereafter 
have  occasion  to  notice  these  and  a  few  other  like  instances  of  con- 
structive fixtures.     I  admit  that  some  of  the  cases  are  quite  too  strict 


220      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

against  the  purchaser;  but  as  far  as  I  have  looked  into  them,  and 
I  have  examined  a  good  many,  both  English  and  American,  they  are 
almost  uniformly  hostile  to  the  idea  of  mere  loose,  movable 
machinery,  even  where  it  is  the  main  agent  or  principle  thing  in 
prosecuting  the  business  to  which  a  freehold  property  is  adapted 
being  considered  as  a  part  of  that  freehold  for  any  purpose.  To 
make  it  a  fixture,  it  must  not  only  be  essential  to  the  business  of  the 
erection,  but  it  must  be  attached  to  it  in  some  way;  at  least,  it  must 
be  mechanically  fitted,  so  as,  in  ordinary  understanding,  to  make  a 
part  of  the  building  itself. 

The  question  has  been  occasionally  examined  in  this  court  as 
between  grantor  and  grantee,  and  in  some  other  relations.  The 
most  material  cases  are  Heermance  v.  Vernoy,  6  Johns.  5 ;  Cresson  v 
Stout,  17  Johns.  116,  121;  Miller  v.  Plumb,  6  Cow.  665;  Austin  v. 
Sawyer,  9  Cow.  39;  and  Raymond  v.  White,  7  Id.  319.  None  of  them 
treat  a  personal  thing  as  a  fixture  short  of  physical  annexation;  and 
some  are  peculiarly  strong  against  the  purchaser.     *     *     * 

The  cases  of  constructive  annexation,  where  the  article  is  seldom 
or  never  corporally  attached  to  the  realty,  are  few,  and  may  be  set 
down  as  exceptions  to  the  general  rule.  They  are  said  to  be  the 
charters  or  deeds  of  an  estate  and  the  chest  containing  them,  deer 
in  a  park,  fish  in  a  pond,  and  doves  in  a  dove-house.  2  Com.  Dig. 
Biens,  B.  6  Greenl.  157;  3  Dane's  Abr.  156;  3  N.  H.  505.  The 
deer,  fish  and  doves  are  set  down  by  Amos  &  Fer.  Fixt.  168,  as  heir- 
looms; and  so  of  various  other  animals.  Heirlooms  are  a  class  of 
property  distinct  from  fixtures.  But  "  the  doors,  windows,  locks, 
keys  and  rings  of  a  house  will  pass  as  fixtures,  by  a  conveyance  of 
the  freehold,  although  they  may  be  distinct  things;  because  they  are 
constructively  annexed  to  the  house."  Amos  &  Fer.  Fixt.  183,  and 
the  book  there  cited.  Many  other  obvious  cases  may  be  supposed. 
One  is,  our  ordinary  Virginia  fence  on  country  farms.  No  vendor 
would  consider  that  as  mere  personal  property.  And  in  Kittredge  v. 
Woods,  3  N.  H.  503,  it  was  held  that  manure  lying  about  a  barn  yard 
passed  by  a  conveyance  of  the  land  as  an  incident. 

These  instances  seem  fully  to  justify  the  courts  when  they  speak 
of  the  great  difficulty  in  fixing  on  any  certain  criterion  which  shall 
rn  all  cases.  They  lead  to  a  strain  of  reasoning  by  Mr.  Dane, 
in  the  third  vol.  of  his  Abridgment,  p.  156,  as  well  as  by  Weston,  J., 
in  Farrar  v.  Stackpole,  by  which,  if  followed  out  in  practice,  the 
mai  hinery  now  in  question  might  well  be  considered  as  a  part  of  the 
realty;  and,  therefore,  the  subject  of  partition,  Mr.  Dane  says,  that 
in  all  the  instances  put  by  him,  the  articles  "  are  very  properly  a 
pari  of  the  real  estate  and  inheritance,  and  pass  with  it  because  not 


V.    i.]  FIXTURES:     ANNEXATION.  221 

the   mere  fixing  or  fastening  to  it  is  alone  to  be  regarded;  but  the 
use,  nature  and  intention."     *     *     * 

The  ancient  distinction,  however,  between  actual  annexation  and 
total  disconnection  is  the  most  certain  and  practical;  and  should, 
therefore,  be  maintained,  except  where  plain  authority  or  usage  has 
created  exceptions.  The  reasoning  of  Mr.  Dane,  and  of  the  learned 
Judge  in  Farrar  v.  Stackpole,  before  cited,  while  it  cannot  be  too 
extensively  applied  to  modern  machinery  in  subordination  to  that 
distinction,  does  not  appear  to  be  sustained  by  authority,  when  it 
seeks  to  raise  a  general  doctrine  of  constructive  fixtures,  from  the 
moral  adaptation  of  what  is  in  fact  a  mere  movable,  to  the  carrying 
on  a  farm  or  factory,  etc.,  however  essential  the  movable  may  be 
for  such  purpose.  The  argument  in  that  shape  proves  too  much. 
Such  adaptation  and  necessity  might  be  extended  even  to  the  use  of 
domestic  animals  on  a  farm,  and  certainly  to  many  implements  in  a 
manufactory  which  could  never  be  recognized  as  fixtures,  without 
utterly  confounding  the  rule  by  which  the  rights  of  the  heir  or  the 
purchaser  have  been  long  governed.  The  judicial  application  of  the 
rule  is  already  sufficiently  nice  and  difficult.  As  between  heir  and 
executor,  it  was  partially  altered  by  2  R.  S.  24,  sec.  6,  sub.  4,  2d 
ed.1  By  this,  "  Things  annexed  to  the  freehold,  or  to  any  building, 
for  the  purpose  of  trade  and  manufacture,  and  not  fixed  into  the 
wall  of  a  house,  so  as  to  be  essential  to  its  support,"  pass  to  the 
executor.  And  see  3  Id.  638,  9,  2d  ed.  Appendix.  This  provision 
certainly  indicates  anything  but  a  legislative  intent  to  enlarge  the 
rights  of  freehold.  •  Taken  literally,  it  would  strip  the  heir  of  the 
wheels,  gearing  and  all  the  other  machinery  fixed  in  the  ordinary 
way  to  a  mill  or  manufactory  inherited  by  him.  It  is  certainly  con- 
trary to  the  ancient  common  law;  see  11  Vin.  167,  Executors,  Z.  pi. 
6;  Amos  &:  Fer.  Fixt.  133,  and  cases  there  cited  on  to  p.  138;  and 
seems  to  derive  very  questionable  countenance  from  more  modern 
authority.  Squire  v.  Mayer,  a  short  note  of  which  is  given  in  2  Freem. 
246,  goes  the  farthest  towards  our  statute  rule;  but  how  very  doubt- 
ful this  and  some  other  modern  cases  of  the  like  tendency  are  may 
be  seen  by  Amos  &  Fer.  Fixt.  ch.  4,  sec.  2,  p.  151,  and  cases  there 
cited.  See  also  Gibbons,  Fixt.  11,  12.  As  between  devisee  and 
executor,  the  suggestion  of  Vice-Chancellor  Hart  in  Lushington  v. 
Sewell,  1  Sim.  435,  4S0,  seems  to  go  beyond  any  adjudged  cases  in 
favor  of  the  freehold.  He  inclined  to  think  that  the  devise  of  a 
West  India  estate  would  pass  the  incidental  stock  of  slaves,  cattle 
and  implements;  because  such  things  are  essential   to  render  the 

1  New  York  Code  of  Civil  Procedure,'  §  2712,  Subd's  4  and  9. —  Ed. 


222      CONSTITUENTS   AND    INCIDENTS    OF    LAND.      [PT.  II.  CH.  II. 

estate  productive ;  and,  denuded  of  them,  it  would  be  rather  a  burden 
than  a  benefit. 

It  is,  I  think,  obvious,  not  only  from  our  statute,  but  from  both 
the  English  and  American  cases,  that  there  is  a  stronger  tendency  to 
consider  fixtures  for  the  purpose  of  trade  as  mere  personal  property, 
than  we  find  either  in  regard  to  those  of  an  agricultural  or  domestic 
character.  See  Gibbons,  Fixt.  10,  n;  Amos  &  Fer.  Fixt.  138,  ed. 
of  1830.  By  several  English  cases  cited  in  these  treatises  the 
executor  was  in  respect  to  trade  fixtures  preferred  in  his  claim 
against  the  heir,  though  the  doctrine  is  far  from  being  settled.  By 
several  American  cases  we  have  seen,  that  such  fixtures  were  denied 
to  have  passed  even  as  between  the  vendor  and  vendee  of  the  free- 
hold ;  though  such  a  rule  derives  no  countenance,  or  certainly  very 
little,  from  any  English  authority,  and  seems  to  be  against  the  weight 
of  American  adjudication. 

On  the  whole,  I  collect  from  the  cases  cited,  and  others,  that, 
as  a  general  rule,  in  order  to  come  within  the  operation  of  a 
deed  conveying  the  freehold,  whether  by  metes  and  bounds  of 
a  plantation,  farm  or  lot,  etc.,  or  in  terms  denoting  a  mill 
or  factory,  etc.,  nothing  of  a  nature  personal  in  itself  will  pass, 
unless  it  be  brought  within  the  denomination  of  a  fixture  by  being 
in  some  way  permanently,  at  least  habitually,  attached  to  the  land 
or  some  building  upon  it.  It  need  not  be  constantly  fastened.  It 
need  not  be  so  fixed  that  detaching  will  disturb  the  earth  or  rend 
any  part  of  the  building.  I  am  not  prepared  to  deny  that  a  machine 
movable  in  itself,  would  become  a  fixture  from  being  connected  in 
its  operations  by  bands,  or  in  any  other  way,  with  the  permanent 
machinery,  though  it  might  be  detached,  and  restored  to  its  ordinary 
place,  as  easily  as  the  chain  in  Farrar  v.  Stackpole.  I  think  it  would 
be  a  fixture  notwithstanding.  But  I  am  unable  to  discover,  from  the 
papers  before  us,  that  any  of  the  machines  in  question  before  the 
commissioners  were  even  slightly  connected  with  the  freehold.  For 
aught  I  can  learn,  they  were  all  worked  by  horses  or  by  hand,  hav- 
ing no  more  respect  to  any  particular  part  of  the  building,  or  its 
water-wheel,  than  the  ordinary  movable  tools  of  such  an  establish- 
ment. These  would  have  their  common  place,  and  be  essential  to 
its  business.  So  a  threshing  machine,  and  the  other  implements  of 
the  farmer.  But  it  would  be  a  solecism  to  call  them  fixtures,  where 
they  arc  not  steadily,  or  commonly  attached,  even  by  bands  or 
hooks,  to  any  part  of  the  realty.  The  word  "  fixtures  "  is  derived 
from  the  things  signified  by  it  being  fastened  or  fixed.  "  It  is  a 
maxim  of  great  antiquity,  that  whatever  is  fixed  to  the  realty  is 
thereby  made  a  part  of  the  realty,  to  which  it  adheres,  and  partakes 


V.   I.]  FIXTURES:    ANNEXATION.  223 

of  all  its  incibents  and  properties."  Toml.  Law  Die.  Fixtures. 
Hence  "  fixtures  "  are  denned  to  be  chattels  or  articles  of  a  personal 
nature  which  have  been  affixed  to  the  land."  Id.  "  It  is  an  ancient 
principle  of  law,"  says  Weston,  J.,  in  Farrar  v.  Stackpole,  "  that 
certain  things,  which  in  their  nature,  are  personal  property,  when 
attached  to  the  realty,  become  part  of  it  as  fixtures."  And  see, 
Amos  &  Fer.  Fixt.  ch.  1,  p.  1. 

It  is  not  to  be  denied  that  there  are  strong  dicta,  and  perhaps  we 
may  add  the  principle  of  several  adjudicated  exceptions,  upon  which 
we  might,  with  great  plausibility,  declare  the  machines  in  question, 
so  essential  to  the  purposes  of  the  manufactory,  although  entirely 
disassociated  with  the  freehold,  a  fit  subject  for  entering  into  the  list 
of  constructive  fixtures. 

The  general  importance  of  the  rule,  however,  which  goes  upon 
corporal  annexation,  is  so  great  that  more  evil  will  result  from  frit- 
tering it  away  by  exceptions,  than  arise  from  the  hardship  of  adher- 
ing to  it  in  particular  cases. 

Nor  can  we  possibly  say,  as  in  the  case  of  the  steelyard  or  engine 
in  the  cotton  manufactory,  cited  from  Caldecott,  that  the  machines 
in  question  must  in  the  nature  of  the  thing,  be  annexed  to  the  free- 
hold. It  appears,  by  the  papers  before  us,  that  they  have  been  used 
with  the  factory  for  several  years,  and  have  passed  with  it  in  con- 
veyances. But  the  affidavits  do  not  state  that  they  are  affixed  in  any 
way.  They  are  treated  by  both  parties,  for  aught  I  can  see,  as 
entirely  detached,  though  the  defendant  ventures  to  express  an 
opinion  that  some  of  them  constitute  a  part  of  the  factory  itself. 
He  gives  no  particulars,  however,  from  which  we  can  say  they  make 
a  part,  any  more  than  if  they  were  so  many  chairs  to  sit  on. 

It  is  true,  that  this  factory  seems  to  have  been  pretty  much  dis- 
mantled. The  principal  part  of  its  machinery  has  been  treated  as 
mere  movables.  Both  the  defendant  and  Mr.  Smith,  one  of  the  com- 
missioners, concur  in  stating  that  nothing  about  the  factory  was 
treated  as  a  fixture,  except  the  water-wheel,  fulling-mill,  dye-kettle, 
press  and  tenter-bars;  and  Mr.  Smith  says  the  factory  was  impelled 
by  a  valuable  water-power.  The  suspicion  would,  indeed,  be  quite 
strong,  from  such  facts  standing  alone,  that,  at  least,  some  of  the 
important  and  valuable  machinery  excepted,  might  be  brought  within 
the  legal  notion  of  fixtures;  and  yet  the  defendant  himself  has  not 
ventured  to  state,  as  I  can  find,  that  any  part  of  the  particular 
machinery  excepted  from  the  report  was  in  the  least  dependent  for 
its  operation  on  the  water-wheel  or  other  permanent  parts  of  the 
factory;  while  Mr.  Goodrich,  one  of  the  commissioners,  says,  in  his 
affidavit,  that  the  excepted  machinery  was  not  affixed  to  the  building 


224      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

or  land.  There  the  case  is  left;  not  one  of  the  deponents  pointing 
out  any  connection  whatever.  No  authority  cited  on  the  argument, 
nor  any  that  I  have  seen,  goes  so  far  as  to  say  that  mere  loose  and 
movable  machines  totally  disconnected  with,  and  making  no  part  of 
the  permanent  machinery  of  a  factory,  can  be  considered  a  fixture 
even  as  between  vendor  and  vendee. 

We  think  the  motion  must  be  denied  with  costs,  and  the  report  of 
the  commissioners  is  confirmed. 


VOORHIS  v.  FREEMAN. 

2  Watts  and  Sergeant  (Pa.),  116.  —  1841. 

Trover  by  Voorhis  against  Freeman  for  the  conversion  of  one 
hundred  and  six  soft  and  chilled  rolls,  part  of  the  machinery  of  an 
iron-rolling  mill.  Defendant  claims  under  the  foreclosure  of  a  mort- 
gage made  by  Sample,  a  former  owner;  plaintiff  claims  under  an 
execution  sale  of  the  rolls  as  personal  property  on  a  judgment  against 
Sample.  Judgment  below  for  the  defendant.  Plaintiff  brings  the 
case  on  writ  of  error  to  this  court. 

Gibson,  C.  J.  —  It  is  true  we  ruled  in  an  unreported  case,  Chaffee  v. 
Stewart,  that  the  spindles  and  other  unattached  machinery  in  a  cotton 
mill,  were  personal  property  for  purpose  of  execution,  on  the  authority 
of  certain  decisions  to  that  effect,  because  we  were  indisposed  to  be 
wise  above  what  is  written;  but  an  examination  of  their  foundation 
would  probably  have  led  us  to  a  different  conclusion  It  is  unneces- 
sary to  pass  the  learning  of  the  subject  in  review,  as  a  clear  birds-eye 
view  of  it  has  been  spread  before  the  profession  by  Mr.  Justice  Cowen 
in  Walker  v.  Sherman,  20  Wend.  636,  from  which  it  is  evident  that  no 
distinctive  principle  pervades  the  cases  universally,  and  that  the 
simple  criterion  of  physical  attachment  is  so  limited  in  its  range, 
and  so  productive  of  contradiction  even  in  regard  to  fixtures  in 
dwellings  to  which  it  was  adapted  before  England  had  become  a 
manufacturing  country,  that  it  will  answer  for  nothing  else.  My 
objection  to  the  conclusion  drawn  from  it  in  that  case,  is  that  the 
court  adhered  to  the  old  distinction  when  the  question  related  to  a 
woolen  factory,  instead  of  following  out  the  principle  started  by 
Mr.  Justice  Weston  in  Farrar  v.  Stackpoh\  6  Greenleaf,  157,  which 
must,  sooner  or  later,  rule  every  case  of  the  sort.  The  courts  will 
In-  drawn  to  it  by  its  liberality  and  fitness,  while  they  will  be  drawn 
away  from  the  old  criterion  by  its  narrowness  and  want  of  adapta- 
tion  to  the  business  and  improvements  of  the  age.     By  the  mere 


V.   i.]  FIXTURES:    ANNEXATION.  225 

force  of  habit,  they  have  adhere  J  to  it  in  almost  all  cases  after  it 
has  ceased  to  be  a  guide  in  any  but  a  few;  for  nothing  but  a  passive 
regard  for  old  notions  could  have  led  them  to  treat  machinery  as 
personal  property  when  it  was  palpably  an  integrant  part  of  a  manu- 
factory or  a  mill,  merely  because  it  might  be  unscrewed  or  unstrapped, 
taken  to  pieces,  and  removed  without  injury,  to  the  buildings. 
It  would  be  difficult  to  point  out  any  sort  of  machinery,  however 
complex  in  its  structure,  or  by  what  means  soever  held  in  its  place, 
which  might  not  with  care  and  trouble  be  taken  to  pieces  and 
removed  in  the  same  way,  and  the  greater  or  less  facility  with  which 
it  could  be  done,  would  be  too  vague  a  thing  to  serve  for  a  test.  It 
would  allow  the  stones,  hoppers,  bolts,  meal-chests,  screens,  scales, 
weights,  elevators,  hopper-boys,  and  running  gears  of  a  grist-mil!, 
as  well  as  the  hammers  and  bellows  of  a  forge,  and  parts  of  many 
other  buildings  erected  for  manufactories,  to  be  put  into  the  class  of 
personal  property,  when  it  would  be  palpably  absurd  to  consider 
them  such.  If  physical  annexation  were  the  criterion  in  regard  to 
such  things,  the  slightest  tack  or  ligament  ought  to  constitute  it; 
else  if  we  were  to  get  away  from  it  even  ever  so  little,  we  should 
have  no  criterion  at  all.  There  are  so  many  fashions,  methods,  and 
means  of  it,  and  so  many  degrees  of  connection  between  material 
substances,  that  there  is  nothing  about  which  men  would  more 
readily  differ  than  whether  a  thing  held  by  a  band  or  a  cleat  were 
permanently  annexed  to  the  freehold,  or  only  for  a  season;  and  the 
proof  of  this  is  seen  in  the  result  of  the  decisions  professedly  regu- 
lated by  it.  To  avoid  discrepance  it  would  be  necessary  to  hold  the 
slightest  fastening  to  be  sufficient,  but  to  exclude  from  the  character 
of  real  property,  as  well  everything  constructively  attached  to  it  by 
the  nature  of  the  thing,  as  everything  held  to  the  ground  by  the 
attraction  of  gravitation.  Thus  cleared  of  its  exceptions,  the  rule 
of  physical  annexation,  though  at  best  a  narrow  one,  might  furnish 
a  criterion  of  universal  application,  though  without  them  it  would 
make  havoc  of  the  cases  already  decided,  and  indeed,  produce  the 
most  absurd  consequences  by  stripping  houses  of  their  window 
shutters  and  doors,  and  farms  of  the  houses  themselves.  When, 
therefore,  we  reflect  on  the  necessary  exceptions  to  the  rule,  as  well 
as  the  cases  of  constructive  attachment  without  the  semblance  of  a 
tack  or  ligament,  we  are  not  surprised  at  the  confusion  and  embar- 
rassment in  which  we  are  left  by  the  decisions.  The  inherent 
imperfections  of  the  rule  required  so  many  exceptions  to  it  in  order 
to  avoid  absurdity  and  injustice  in  its  application,  that  it  has  almost 
ceased  to  be  a  rule  at  all.  Being  purely  artificial,  and  having  no 
regard  to  the  purposes  for  which  capital  is  invested,  a  rigid  applica- 

LAW  OF  l'ROP.   IN  LAND  —  15 


226      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.   CH.  II. 

tion  of  it  would  be  ruinous  to  the  manufacturer.  In  Pennsylvania, 
where  a  statute  directs  that  real  estate  shall  not  be  sold  on  execu- 
tion before  the  rents,  issues,  and  profits,  shall  have  been  found  by 
an  inquest  insufficient  to  satisfy  the  debt  in  seven  years,  not  only 
might  this  conservative  provision  be  evaded,  but  a  cotton-spinner, 
for  instance,  whose  capital  is  chiefly  invested  in  loose  machinery, 
might  be  suddenly  broken  up  in  the  midst  of  a  thriving  business,  by 
suffering  a  creditor  to  gut  his  mill  of  everything  which  happened  not 
to  be  spiked  and  riveted  to  the  walls,  and  sell  its  bowels  not  only 
separately  but  piecemeal.  A  creditor  might  as  well  be  allowed  to 
sell  the  works  of  a  clock,  wheel  by  wheel.  His  interest,  it  may  be 
said,  would  forbid  him  to  do  so;  but  in  the  case  of  a  manufactory, 
he  would  often  be  compelled  to  sell  a  part,  or  to  sell  many  times  the 
worth  of  the  debt,  and  none  but  a  person  entering  into  the  business 
would  purchase  either  a  part  or  the  whole.  The  sacrifice  that  would 
be  induced  by  either  course,  is  incalculable;  but  that  is  not  all.  The 
bare  walls  of  the  buildings  would  be  comparatively  of  little  value. 
They  might  perhaps  answer  the  purposes  of  a  barn;  but  so  might 
the  walls  of  a  dwelling,  when  deprived  of  their  doors  and  windows, 
and  why  are  these  considered  a  part  of  the  dwelling?  Simply 
because  it  would  be  unfit  for  the  purposes  of  a  dwelling  without  them. 
What,  then,  is  demanded  in  the  case  of  a  building  erected  for  a 
manufactory,  but  an  application  of  the  same  principle?  Whether 
fast  or  loose,  therefore,  all  the  machinery  of  a  manufactory  which  is 
necessary  to  constitute  it,  and  without  which  it  would  not  be  a  manu- 
factory at  all,  must  pass  for  a  part  of  the  freehold.  This  is  no  more 
than  an  enlargement  of  the  principle  of  constructive  attachment; 
and  it  is  the  principle  of  Farrar  v.  Stackpole,  glanced  at  by  Lord 
Mansfield  in  Lawton  v.  Lazuton,  i  H.  B.  259,  note,  who  seems  to  have 
foreseen  its  day.  I  speak  not  here  of  questions  between  tenant  and 
landlord  or  remainderman,  but  of  those  between  vendor  and  vendee, 
heir  and  executor,  debtor  and  execution  creditor;  and  between 
co-tenants  of  the  inheritance.  With  this  limitation,  nothing  said  or 
done  by  this  court,  except  its  decision  in  Chaffee  v.  Stewart,  already 
mentioned,  and  an  obiter  recognition  of  an  adverse  decision,  by  the 
judge  who  delivered  the  opinion  of  the  court  in  Gray  v.  HoIds/iip,  17 
Serg.  &  Rawle,  415,  will  be  found  to  conflict  with  the  principle  pro- 
posed.  Certainly  nothing  else  ever  said  by  us  gives  countenance  to 
the  notion  that  the  rolls  of  an  iron  mill  may  be  seized  and  sold  as 
personal  property. 

But  such  rolls,  being  adapted  to  the  manufacture  of  bars  of  differ- 
1  nt  shapes  .nil  sizes,  cannot  all  be  used  at  once;  and  according  to 
the  ordinary  criterion,  only  those  in  place  and  fixed  for  use  would  be 


V.   I.]  FIXTURES:    ANNEXATION.  227 

deemed  a  part  of  the  mill.  But  by  the  criterion  proposed,  they  must 
be  deemed  equally  a  part  of  it  when  unfixed  to  give  place  to  others; 
for  a  rolling  mill  without  rollers  for  all  work,  would  be  as  incom- 
plete as  a  hatter's  shop  without  blocks  for  all  heads.  By  this,  how- 
ever, I  mean  not  to  be  understood  as  intimating  that  any  such  block 
is  part  of  the  realty.  On  the  principle,  then,  that  a  thing  temporarily 
severed  from  the  freehold  does  not  cease  to  belong  to  it,  the  whole 
set  must  be  considered  a  part  of  the  mill.  Some  two  or  three  of 
these  rolls,  however,  were  duplicates;  but  all  of  them  had,  at  one 
time  or  another,  been  in  actual  operation,  and  it  is  impossible  to  say 
which  were  the  proper  members  of  the  set,  and  which  the  super- 
numeraries. But  even  if  that  could  be  told,  all  might  nevertheless 
be  deemed  a  part  of  the  mill,  seeing  that  they  are  often  broken  and 
cannot  be  instantly  replaced  if  they  are  not  kept  ready  on  hand. 
Duplicates  necessary  and  proper  for  an  emergency  consequently 
follow  the  realty  on  the  principle  by  which  duplicate  keys  of  a  bank- 
ing-house, or  the  toll-dishes  of  a  mill,  follow  it. 

We  are  of  opinion,  therefore,  that  the  rolls  in  question  passed  as 
a  part  of  the  freehold  by  the  mortgage  and  sale  on  the  levari  facias  ; 
but  that  if  they  had  not  passed,  they  could  not  have  been  sold  as 
chattels  on  the  plaintiff's  fieri  facias  against  the  n.  ortgagor;  acd 
were  it  necessary,  we  would  further  hold  that  they  might  have 
passed,  had  they  been  chattels,  by  force  of  the  word  apparatus  in 
the  description  of  the  premises.  On  all  these  points  the  case  is 
with  the  defendants.  Judgment  affirmed. 


FARRAR  v.  STACKPOLE. 

6  Maine,  154.  —  1829. 

Trover  for  a  mill-chain,  dogs  and  bars.  Plaintiffs  claimed  title 
through  a  deed  from  defendant.  It  was  proved  that  the  chain,  dogs 
and  bars  were  in  their  proper  places  when  the  deed  was  made.  As 
the  chain  in  question  was  prepared  for  being  hooked  and  unhooked 
at  pleasure,  the  trial  judge  ruled  that  it  was  a  personal  chattel  which 
would  not  pass  by  the  deed  of  the  mill,  unless  by  uniform  and 
general  usage  it  should  be  considered  a  part  of  the  same.  The 
question  as  to  usage  was  left  to  the  jury  on  the  evidence  and  they 
founr/  for  plaintiff.  The  questions  of  construction  and  of  admissi- 
bility of  parol  evidence  as  to  usage  were  reserved  for  this  court 

Weston,  J.,  delivered  the  opinion  of  the  Court: 
If  the  chain  in  question  passed  as  a  constituent  part  of  the  mill, 
the  plaintiffs  have  made   out  their  title,  and  have  a  right  to  judg- 


228      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

ment  on  the  verdict.  A  considerable  portion  of  the  machinery  and 
power  of  a  mill,  like  that  conveyed  by  the  defendant,  is  designed 
to  be  applied  to  draw  up  logs  into  the  mill;  which  is  essential  to  the 
operation  of  one  of  this  construction.  It  is  not  denied  that  other 
parts  of  the  machinery  intended  for  this  purpose,  go  with  the  mill; 
but  it  is  insisted  that  the  chain  is  of  the  nature  of  personal  property, 
and  therefore  passes  not  by  a  deed  of  the  realty  unless  specially 
named.  To  this  it  may  be  answered,  first,  that  if  it  be  an  essential 
part  of  the  mill  it  is  included  in  that  term,  whether  real  or  personal; 
secondly,  that  that  which  is  in  its  nature  personal  may  change  its 
character,  if  fixed,  used,  and  appropriated  to  that  which  is  real.  Is 
it  too  much  to  say  that  the  mill  is  incomplete  without  a  chain,  a 
cable,  or  other  substitute?  It  maybe  that  a  mill-wrightwho  contracts 
to  erect  a  mill,  and  to  furnish  materials,  may  be  deemed  to  have  com- 
pleted his  engagement  without  supplying  a  chain.  One  mill-wright, 
a  witness  in  this  case,  has  testified  that  such  is  his  impression.  And 
if  this  is  urderstood  generally  his  contract  might  not  extend  further. 
But  the  owner  would  find  that  he  had  yet  something  more  to  procure 
before  the  mill  could  be  in  a  condition  to  operate.  The  chain  is  the 
last  of  the  parts  in  the  machinery  to  which  the  impelling  power  is 
communicated  to  effect  the  object  in  view.  Its  actual  location  in 
the  succession  of  parts  can  make  no  difference.  If  it  is  in  its  nature 
essential  to  the  mill  it  is  included  in  that  term;  and  that,  as  has 
been  before  remarked,  whether  it  be  personal  or  real  property.  But 
upon  consideration,  we  are  of  opinion  that  it  ought  to  be  regarded 
as  appertaining  to  and  constituting  a  part  of  the  reality. 

It  is  an  ancient  principle  of  law  that  certain  things  which  m  their 
nature  are  personal  property,  when  attached  to  the  realty,  become 
part  of  it,as  fixtures.  One  criterion  is  that  if  that  which  is  ordinarily 
personal  be  so  fixed  to  the  realty  that  it  cannot  be  severed  there- 
from without  damage,  it  becomes  part  of  the  realty;  as  wainscot 
work  and  old  fixed  and  dormant  tables  and  benches.  Other  things 
pass  as  incident  to  the  realty,  as  doves  in  a  dove-house,  fish  in  a 
pond,  or  deer  in  a  park:  2  Com.  Dig.  Biens,  B.  On  the  other  hand, 
as  between  landlord  and  tenant,  for  the  benefit  of  trade,  in  modern 
times  many  things  are  regarded  as  personal  which,  as  between  the 
heir  and  executor,  would  descend  to  the  heir  as  part  of  the  inheritance. 

Although  the  being  fastened  or  fixed  to  the  freehold  is  the  leading 
principle  in  many  of  the  cases  in  regard  to  fixtures  it  has  not  been 
the  only  one.  Windows,  doors,  and  window-shutters  are  often  hung 
lint  ;mt  fastened  to  a  building,  yet  they  are  properly  part  of  the  real 
estate,  and  pass  with  it;  because  it  is  not  the  mere  fixing  or  fasten- 
ing which    is   regarded,  but  the  use,  nature,  and    intention.      Dane's 


V.    I.]  FIXTURES:     ANNEXATION.  229 

Abr.  ch.  76,  art.  S,  sec.  39.  Modern  times  have  been  fruitful  in 
inventions  and  improvements  for  the  more  secure  and  comfortable 
use  of  buildings  as  well  as  of  many  other  things  which  administer  to 
the  enjoyment  of  life.  Venetian  blinds,  which  admit  the  air  and 
exclude  the  sun,  whenever  it  is  desirable  so  to  do,  are  of  modern 
use;  so  are  lightning-rods,  which  have  now  become  common  in  this 
country  and  in  Europe.  These  might  be  removed  from  buildings 
without  damage;  yet,  as  suited  and  adapted  to  the  buildings  upon 
which  they  are  placed,  and  as  incident  thereto,  they  are  doubtless 
part  of  the  inheritance,  and  would  pass  by  deed  as  appertaining  to 
the  realty.  But  the  genius  and  enterprise  of  the  last  half-century 
has  been  in  nothing  more  remarkable  than  in  the  employment  of 
some  of  the  great  agents  of  nature,  by  means  of  machinery,  to  an 
infinite  variety  of  purposes,  for  saving  of  human  labor.  Hence  there 
has  arisen  in  our  country  a  multitude  of  establishments  for  working 
in  cotton,  wool,  wood,  iron,  and  marble,  some  under  the  denomina- 
tion of  mills,  and  others  of  factories,  propelled  generally  by  water 
power,  but  sometimes  by  steam.  These  establishments  have  in 
many  instances,  perhaps  in  most,  acquired  a  general  name,  which  is 
understood  to  embrace  all  their  essential  parts;  not  only  the  build- 
ing which  shelters,  incloses,  and  secures  the  machinery,  but  the 
'machinery  itself.  Much  of  it  might  be  easily  detached,  without 
injury  to  the  remaining  parts  or  to  the  building.  But  it  would  be  a 
very  narrow  construction  which  should  exclude  it  from  passing  by 
the  general  name  by  which  the  establishment  is  known,  whether  of 
mill  or  factory.  The  general  principles  of  law  must  be  applied  to 
new  kinds  of  property,  as  they  spring  into  existence,  in  the  progress 
of  society,  according  to  their  nature  and  incidents,  and  the  common 
sense  of  the  community.  The  law  will  take  notice  of  the  mutations 
of  language,  and  of  the  meaning  of  new  terms  applied  to  new  sub- 
jects as  they  arise.  In  other  words,  it  will  understand  terms  used 
by  parties  in  their  contracts,  whether  executed  or  executory,  whether 
in  relation  to  real  or  personal  estate,  according  to  their  ordinary 
meaning  and  acceptation. 

There  was  at  Bath,  in  this  State,  a  saw-mill  propelled  by  steam, 
generally  called  the  steam  saw-mill.  Suppose  this  establishment  had 
been  conveyed  by  the  name  of  the  steam  saw-mill,  without  a  more 
particular  description.  What  would  pass?  There  is  nothing  in  the 
books  with  respect  to  this  species  of  property,  for  it  is  of  quite 
modern  invention ;  and  there  is  no  other  mill  of  the  kind  in  this  part 
of  the  country.  If  you  exclude  such  parts  of  the  machinery  as  may  be 
detached  without  injury  to  the  other  parts  or  to  the  building,  you 
leave  it  mutilated,  incomplete,  and  insufficient  to  perform  its  intended 


230      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

operations.  The  parties  in  using  the  general  term  would  intend  to 
embrace  whatever  was  essential  to  it,  according  to  its  nature  and 
design;  and  the  law  would  doubtless  so  construe  the  conveyance  as 
to  effectuate  the  lawful  intention  of  the  parties.  Salt-pans  have 
been  held  to  pass  with  the  realty,  and  to  belong  to  the  inheritance; 
because  adapted  and  designed  for  and  incident  to  an  establishment 
for  the  manufacture  of  salt.  The  principle  is  that  certain  things, 
personal  in  their  nature,  when  fitted  and  prepared  to  be  used  with 
real  estate,  change  their  character,  and  appertain  to  the  realty,  as 
an  incident  or  accessory  to  its  principal.  Upon  this  ground  we  are 
satisfied  that  the  chain  in  question,  being  in  the  mill  at  the  time, 
and  essential  to  its  beneficial  enjoyment,  passed  by  the  deed  of  the 
defendant  to  Asa  Redington,  under  whom  the  plaintiffs  claim, 
independent  of  any  reference  to  usage.  The  verdict  is  therefore 
sutained,  although  not  upon  a  ground  in  accordance  with  the 
impressions  of  the  judge  who  presided  at  the  trial.  This,  we  think, 
upon  the  whole,  a  fair  application  of  the  principles  of  law  to  the 
case.  Had  the  term  mill,  however,  by  uniform  and  general  usage, 
been  understood  not  to  embrace  the  chain,  a  different  construction 
would  no  doubt  have  obtained;  for  it  is  a  term  of  art  the  proper 
meaning  of  which  would  be  fixed  by  the  general  understanding  of 
those  who  are  skilled  and  experienced  in  it.  If  they  were  not  agreed, 
the  law  would  adopt  that  which  was  most  general,  and  which  would 
best  accord  with  the  nature  and  character  of  the  subject-matter. 
The  jury  have  found,  upon  the  evidence  submitted  to  them,  that  by 
general  and  uniform  usage  the  chain  passed  by  a  deed  of  the  mill. 
This  finding  was  somewhat  stronger  than  the  evidence  warranted. 
It  did  appear  that  there  had  been  exceptions  to  this  usage,  but  the 
weight  of  evidence  went  to  support  it.  At  any  rate,  it  is  apparent 
that  the  usage  is  rather  in  favor  than  against  the  construction  we 
have  adopted.  But  as  we  are  of  opinion  that  the  title  of  the  plain- 
tiffs is  well  supported  by  the  deed,  independent  of  usage,  it  becomes 
unnecessary  to  decide  upon  the  competency  or  effect  of  the  testi- 
mony adduced  upon  this  point. 

Judgment  on  the  verdict. 


V.  I.]  FIXTURES:     ANNEXATION.  23 1 

SNEDEKER  v.  WARRING. 

12  New  York,  170.  —  1S5  4.. 

Action  to  recover  the  value  of  a  statue  and  sun-dial  withheld  by 
defendant  from  plaintiff.  Verdict  and  judgment  for  plaintiff. 
Defendant  appeals. 

Parker,  J.  — The  facts  in  this  case  are  undisputed,  and  it  is  a 
question  of  law  whether  the  statue  and  sun-dial  were  real  or  personal 
property.  The  plaintiffs  claim  they  are  personal  property,  having 
purchased  them  as  such  under  an  execution  against  Thorn.  The 
defendant  claims  they  are  real  property,  having  bought  the  farm  on 
which  they  were  erected  at  a  foreclosure  sale  under  a  mortgage, 
executed  by  Thorn  before  the  erection  of  the  statue  and  sun-dial, 
and  also  as  mortgagee  in  possession  of  another  mortgage,  executed 
by  Thorn  after  their  erection;  the  claim  of  the  defendant  under  the 
mortgage  sale  is  not  impaired  by  the  fact  that  the  property  in  con- 
troversy was  put  on  the  place  after  the  execution  of  the  mortgage. 
Corliss  v.  Van  Sagin,  29  Maine  R.  115  ;  Winslow  v.  Merchants'1  Ins.  Co., 
4  Mete.  R.  306.  Permanent  erections  and  other  improvements, 
made  by  the  mortgagor  on  the  land  mortgaged,  become  a  part  of 
the  realty  and  are  covered  by  the  mortgage.  In  deciding  whether 
the  property  in  controversy  was  real  or  personal,  it  is  not  to  be  con- 
sidered as  if  it  were  a  question  arising  between  landlord  and  tenant, 
but  it  is  governed  by  the  rules  applicable  between  grantor  and 
grantee.  The  doubt  thrown  upon  this  point  by  the  case  of  Taylor 
v.  Townsend,  8  Mass.  R.  411,  is  entirely  removed  by  the  later 
authorities,  which  hold  that,  as  to  fixtures,  the  same  rule  prevails 
between  mortgagor  and  mortgagee  as  between  grantor  and  grantee. 
15  Mass.  159;  4  Mete.  R.  306;  3  Edw.  Ch.  R.  246;  1  Hilliard  on 
Mortgages,  294  note  /,  and  cases  there  cited;  and  see  Bishop  v. 
Bishop,  1  Kern.  123,  126. 

Governed,  then,  by  the  rule  prevailing  between  grantor  and 
grantee,  if  the  statue  and  dial  were  fixtures,  actual  or  constructive, 
they  passed  to  the  defendant  as  part  of  the  realty.  No  case  has 
been  found  in  either  the  English  or  American  courts,  deciding  in 
what  cases  statuary  placed  in  a  house  or  in  grounds  shall  be  deemed 
real  and  in  what  cases  personal  property.  This  question  must, 
therefore,  be  determined  upon  principle.  All  will  agree  that  statuary 
exposed  for  sale  in  a  workshop,  or  wherever  it  may  be  before  it 
shall  be  permanently  placed,  is  personal  property;  nor  will  it  be 
controverted  that  where  statuary  is  placed  upon  a  building,  or  so 
connected  with  it  as  to  be  considered  part  of  it,  it  will  be  deemed 


232      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

real  property,  and  pass  with  a  deed  of  the  land.  But  the  doubt  in 
this  case  arises  from  the  peculiar  position  and  character  of  this 
statue,  it  being  placed  in  a  court-yard  before  the  house,  on  a  base 
erected  on  an  artificial  mound  raised  for  the  purpose  of  supporting 
it.  The  statue  was  not  fastened  to  the  base  by  either  clamps  or 
cement,  but  it  rested  as  firmly  on  it  by  its  own  weight,  which  was 
three  or  four  tons,  as  if  otherwise  affixed  to  it.  The  base  was  of 
masonry,  the  seams  being  pointed  with  cement,  though  the  stones 
were  not  laid  in  either  cement  or  mortar;  and  the  mound  was  an 
artificial  and  permanent  erection,  raised  some  two  or  three  feet 
above  the  surrounding  land,  with  a  substantial  stone  foundation. 

If  the  statue  had  been  actually  affixed  to  the  base  by  cement  or 
clamps,  or  in  any  other  manner,  it  would  be  conceded  to  be  a  fixture 
and  to  belong  to  the  realty.  But,  as  it  was,  it  could  have  been 
removed  without  fracture  to  the  base  on  which  it  rested.  But  is 
that  circumstance  controlling?  A  building  of  wood,  weighing  even 
less  than  this  statue,  but  resting  on  a  substantial  foundation  of 
masonry,  would  have  belonged  to  the  realty.  A  thing  may  be  as 
firmly  affixed  to  the  land  by  gravitation  as  by  clamps  or  cement. 
Its  character  may  depend  much  upon  the  object  of  its  erection.  Its 
destination,  the  intention  of  the  person  making  the  erection,  often 
exercise  a  controlling  influence,  and  its  connection  with  the  land  is 
looked  at  principally  for  the  purpose  of  ascertaining  whether  that 
intent  was  that  the  thing  in  question  should  retain  its  original 
chattel  character,  or  whether  it  was  designed  to  make  it  a  permanent 
accession  to  the  lands.     *     *     * 

No  evidence  could  be  received  more  satisfactory  of  the  intent  of 
the  proprietor  to  make  a  statue  part  of  his  realty,  than  the  fact  of 
his  having  prepared  a  niche  or  erected  a  permanent  base  of  masonry 
expressly  to  receive  it;  and  to  remove  a  statue  from  its  place,  under 
such  circumstances,  would  produce  as  great  an  injury  and  do  as 
much  violence  to  the  freehold,  by  leaving  an  unseemly  and 
uncovered  base,  as  it  would  have  done  if  torn  rudely  from  a  fasten- 
ing by  which  it  had  been  connected  with  the  land.  The  mound  and 
base  in  this  case,  though  designed  in  connection  with  the  statue  as 
an  ornament  to  the  grounds,  would,  when  deprived  of  the  statue, 
become  a  most  objectionable  deformity. 

There  are  circumstances  in  this  case,  *  *  *  greatly  strength- 
ening the  presumption  of  such  intent.  The  base  was  made  of  red 
sandstone,  the  same  material  as  the  statue,  giving  to  both  the  statue 
and  base  the  appearance  of  being  but  a  single  block,  and  both  were 
also  of  the  same  material  as  the  house.  The  statue  was  thus 
peculiarly  fitted    as  an   ornament   for  the  grounds  in  front  of  that 


V.   I.]  FIXTURES:    ANNEXATION.  233 

particular  house.  It  was  also  of  colossal  size,  and  was  not  adapted 
to  any  other  destination  than  a  permanent  ornament  to  the  realty. 
The  design  and  location  of  the  statue  were  in  every  respect  appro- 
priate, in  good  taste,  and  in  harmony  with  the  surrounding  objects 
and  circumstances. 

I  lay  entirely  out  of  view  in  this  case  the  fact  that  Thom  testified 
that  rre  intended  to  sell  the  statue  when  an  opportunity  should  offer. 
His  secret  intention  in  that  respect  can  have  no  legitimate  bearing 
on  the  question.  He  clearly  intended  to  make  use  of  the  statue  to 
ornament  his  grounds,  when  he  erected  for  it  a  permanent  mound 
and  base;  and  a  purchaser  had  a  right  so  to  infer  and  to  be  governed 
by  the  manifest  and  unmistakable  evidences  of  intention.  It  was 
decided  by  the  Court  of  Cassation  in  France,  in  Homelle  v.  Enregistr. 
2  Ledru  Rollin,  Journal  du  Palais,  Repertoire,  etc.,  214,  that  the 
destination  which  gives  to  movable  objects  an  immovable  character 
results  from  facts  and  circumstances  determined  by  the  law  itself, 
and  could  neither  be  established  nor  taken  away  by  the  simple 
declarations  of  the  proprietor,  whether  oral  or  written.  There  is  as 
much  reason  in  this  rule  as  in  that  of  the  common  law,  which  deems 
every  person  to  have  intended  the  natural  consequences  of  his  own 
acts. 

There  is  no  good  reason  for  calling  the  statue  personal  because  it 
was  erected  for  ornament  only,  if  it  was  clearly  designed  to  be  per- 
manent. If  Thom  had  erected  a  bower  or  summer-house  of  wicker- 
work,  and  had  placed  it  on  a  permanent  foundation  in  an  appropriate 
place  is  front  of  his  house,  no  one  would  doubt  it  belonged  to  the 
realty;  and  I  think  this  statue  as  clearly  belongs  to  the  realty  as  a 
statue  would  placed  on  the  house,  or  as  one  of  two  statues  placed 
on  the  gate-posts  at  the  entrance  to  the  grounds. 

An  ornamental  monument  in  a  cemetery  is  none  the  less  real 
property  because  it  is  attached  by  its  own  weight  alone  to  the 
foundation  designed  to  give  it  perpetual  support. 

It  is  said  the  statues  and  sphinxes  of  colossal  size  which  adorn  the 
avenue  leading  to  the  Temple  of  Karnak,  at  Thebes,  are  secured  on 
their  solid  foundations  only  by  their  own  weight.  Yet  that  has  been 
found  sufficient  to  preserve  many  of  them  undisturbed  for  4,000 
years.  Taylor's  Africa,  11$  et  seq.  And  if  a  traveler  should  pur- 
chase from  Mehemet  Ali  the  land  on  which  these  interesting  ruins 
rest,  it  would  seem  quite  absurd  to  hold  that  the  deed  did  not  cover 
the  statues  still  standing,  and  to  claim  that  they  were  the  still  unad- 
ministered  personal  assets  of  the  Ptolemies,  after  an  annexation  of 
such  long  duration.  No  legal  distinction  can  be  made  between  the 
sphinxes  of  Thebes  and  the  statue  of  Thom.     Both  were  erected 


234      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.   CH.  II. 

for  ornament,  and  the  latter  was  as  colossal  in  size  and  as  firmly 
annexed  to  the  land  as  the  former,  and  by  the  same  means. 

I  apprehend  the  question  whether  the  pyramids  of  Egypt  or  Cleo- 
patra's needle  are  real  or  personal  property  does  not  depend  on  the 
result  of  an  inquiry  by  the  antiquarian  whether  they  were  originally 
made  to  adhere  to  their  foundations  with  wafers,  or  sealing-wax,  or 
a  handful  of  cement.  It  seems  to  me  puerile  to  make  the  title  to 
depend  upon  the  use  of  such  or  of  any  other  adhesive  substances, 
when  the  great  weight  of  the  erection  is  a  much  stronger  guaranty 
of  permanence. 

The  sun-dial  stands  on  a  somewhat  different  footing.  It  was 
made  for  use  as  well  as  for  ornament,  and  could  not  be  useful  except 
when  firmly  placed  in  the  open  air  and  in  the  light  of  the  sun. 
Though  it  does  not  appear  that  the  stone  on  which  it  was  placed 
was  made  expressly  for  it,  it  was  appropriately  located  on  a  solid 
and  durable  foundation.  There  is  good  reason  to  believe  it  was 
designed  to  be  a  permanent  fixture,  because  the  material  of  which 
it  was  made  was  the  same  as  that  of  the  house  and  the  statue,  and 
because  it  was  in  every  respect  adapted  to  the  place. 

My  conclusion  is,  that  the  facts  in  the  case  called  on  the  judge  of 
the  circuit  to  decide,  as  a  matter  of  law,  that  the  property  was  real, 
and  to  nonsuit  the  plaintiff;  and  if  I  am  right  in  this  conclusion,  the 
judgment  of  the  Supreme  Court  should  be  reversed.1 


What  mode  or  degree  of  annexation  is  conclusive  against  removability j 

what  is  not. 

WARD  y.  KILPATRICK. 

85  New  York,  413.  —  1SS1. 

Finch,  J.  —  There  is  one  serious  question  in  this  case,  and  a  great 
many  which  may  be  disposed  of  without  difficulty.  As  to  the  latter 
a  very  brief  statement  of  our  conclusions  must  suffice. 

The  action  was  to  foreclose  a  mechanic's  lien  under  the  act  of 
1875  (chap.  379),  applicable  to  the  city  of  New  York.  The  defend- 
ant was  the  owner  of  eight  houses  in  process  of  construction,  and 
had  contracted  with  plaintiff  for  mirror  frames  to  be  set  in  the  parlor 
and  hall  of  each  house;  those  in  the  halls  to  be  arranged  to  serve 
the  purpose  of  hat-racks  and  umbrella-stands.  The  work  having 
been  completed   as  plaintiff  claimed,  he  presented  his  bill,  and  pay- 

1  The  part>  of  the  opinion  omitted  contain  a  discussion  of  the  legal  character 
of  statuary  in  the  Roman  Law.—  Ki>. 


V.  i.]  FIXTURES:    ANNEXATION.  235 

ment  being  refused  filed,  the  mechanic's  lien,  which  is  now  sought  to 
be  foreclosed.     *     *     * 

Some  other  minor  objections  were  taken  in  the  case,  not  important 
to  be  considered,  and  it  now  becomes  necessary  to  determine  the 
principal  question,  whether  the  articles  furnished  became  so  attached 
to  the  buildings  in  progress  of  construction  as  to  justify  a  lien  under 


the  act  of  1S75.  The  language  of  its  first  section  is  "  every  person 
performing  labor  upon,  or  furnishing  materials  to  be  used  in  the  con- 
struction, alteration,  or  repair  of  any  building,  etc.,  shall  have  a  lien 
upon  the  same."  Labor  upon  the  building,  materials  used  in  its 
construction  are  the  test'of  the  lienor's  rights.  In  other  words,  the 
work  and  the  materials  both  in  fact  and  in  intention  must  have 
become  part  and  parcel  of  the  building  itself.  The  inquiry 
approaches  so  nearly  the  doctrine  of  fixtures  as  to  make  the 
decisions  in  that  respect  authoritative,  and  the  necessary  guides  to 
our  conclusion.  If,  as  between  vendor  and  vendee,  the  mirror< 
frames  in  question  would  have  passed  by  a  deed  of  the  real  estateJ 
without  special  enumeration  or  description,  it  will  follow  that  they) 
formed  part  of  the  house,  and  were  elements  in  its  construction,  and\ 
so  furnished  a  basis  for  the  lien  claimed.  The  general  subject  was, 
much  discussed  in  this  court  in  McRea  v.  Central  Nat.  Bank  of  Troy, 
66  N.  Y.  489.  The  results  arrived  at  were  as  precise  and  definite  as 
the  nature  of  the  subject  would  permit,  and  must  form  the  basis  of 
our  judgment.  The  question  arose  between  mortgagor  and  mort-i 
gagee,  and  three  requisites  were  named  as  the  tests  of  a  fixture. 
These  were,  first,  actual  annexation  to  the  realty  or  something  - 
appurtenant  thereto;  second,  application  to  the  use  or  purpose  to 
which  that  part  of  the  realty  to  which  it  is  connected  is  appropri- 
ated;  and,  third,  the  intention  of  the  party  making  the  annexation  to 
make  a  permanent  accession  to  the  freehold. 

The  mirror  frames  in  the  present  case  were  actually  annexed  to 
the  realty.  They  were  so  annexed  during  the  process  of  building, 
and  as  part  of  that  process.  They  were  not  brought  as  furniture 
into  the  completed  house,  but  themselves  formed  part  of  such  com- 
pletion. Those  in  the  hall  filled  up  and  occupied  a  gap  left  in  the 
wainscoting.  They  were  an  essential  part  of  the  inner  surface  of 
the  hall,  and  of  a  material  and  construction  to  correspond  with  and 
properly  form  part  of  such  inner  surface.  Those  in  the  parlor  fitted 
into  a  gap  purposely  left  in  the  base-board.  Both  those  in  the  hall 
and  those  in  the  parlor  were  fastened  to  the  walls  with  hooks  and 
screws.  They  could  be  removed,  but  their  removal  would  leave 
unfinished  walls  and  require  work  upon  the  house  to  supply  and  repair 
their  absence. 


^>^<~\^Si^  \JI^\<^JW^N^^^j^^^ 


230      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.   CH.  II. 

They  were  fitted  to  the  use  and  purpose  for  which  the  part  of  the 
building  they  occupied  was  designed.  They  formed  part  of  the  inner 
wall.  Their  construction  and  finish  was  made  to  correspond  with 
the  cabinet  work  of  the  rooms.  In  each  house  they  faced  each  other 
and  formed  the  most  prominent  feature  of  the  internal  orna- 
mentation. 

They  were  intended  by  the  owner  to  be  permanently  attached  to 
the  buildings  and  to  go  with  them  when  sold  as  essential  parts  of 
the  construction.  Three  of  the  houses  were  in  fact  thus  sold.  The 
owner  testified  as  to  these  frames,  that  he  regarded  them  as  "  the 
most  attractive  portion  of  the  house;  "  that  he  stated  to  the  agent 
of  the  maker,  that  it  was  very  important  to  have  a  few  of  the  frames 
in  immediately  "  so  that  a  party  who  would  be  desirous  of  purchas- 
ing the  house  could  see  these  mirrors  and  hat-racks;  "  that  the 
agreement  with  Mr.  Evers  was  that  he  should  go  on  immediately 
and  put  in  the  frames  in  two  or  three  of  the  houses  "  so  as  to  be  able 
to  show  what  the  houses  would  be,  without  delay;  "  that  the  kind 
of  work  he  called  this  particular  work  that  was  to  be  done,  was 
'  cabinet  carpentering;  "  that  on  one  or  more  occasions  he  com- 
plained of  the  work  not  having  been  done,  adding  "  and  that  I  could 
not  get  my  houses  ready  for  market;  "  and  that  he  was  very  strenu- 
ous about  having  the  frames  put  up  "  because  he  wished  to  show 
the  houses  to  some  parties."  These  facts  indicate  very  plainly  the 
purpose  and  intention  of  the  owner  to  permanently  attach  the 
frames  to  the  building  and  make  them  a  part  of  the  structure.  It 
follows  that  they  became  parcel  of  the  realty,  and  as  between  vendor 
and  vendee  would  have  passed  by  deed.  The  recent  case  of 
McKeage  v.  Hanover  Fire  Insurance  Co.,  81  N.  Y.  38,  does  not  con- 
flict with  this  conclusion.  In  that  case  the  proof  showed  that  the 
mirrors  "  were  not  set  into  the  walls;  "  were  put  up  after  the  house 
had  been  built;  were  capable  of  being  easily  detached  without  inter- 
fering with  or  injuring  the  walls;  and  were  as  much  mere  furniture 
as  pictures  hung  in  the  usual  way.  The  difference  between  the  cases 
is  obvious. 

We  are  of  opinion,  therefore,  that  the  work  done  by  the  lienor  was 
work  upon  the  house,  and  the  materials  furnished  were  used  in  its 
construction.  The  objection  that  no  lien  attached  cannot  be 
sustained. 

We  find  in  the  numerous  exceptions  no  sufficient  ground  for 
reversal,  and  the  judgment  should  be  affirmed,  with  costs. 

Judgment  affirmed. 


v.  i.]  fixtures:   annexation.  237 

O'BRIEN  v.  KUSTERER. 

27  Michigan,  289.  —  1873. 

Graves,  J.  —  On  the  13th  of  August,  1868,  the  complainants  in 
the  original  bill,  O'Brien  and  Calkins,  leased  to  the  defendant 
Kusterer  and  one  Werner,  for  three  years  from  the  15th  of  the  suc- 
ceeding September,  the  east  basement  of  Phcenix  hall  in  Grand 
Rapids,  for  an  eating  house  or  saloon,  at  a  yearly  rent  of  six  hundied 
dollars,  payable  quarterly.  The  lessors,  at  considerable  expense, 
fitted  up  the  property  with  a  bar  and  other  conveniences  to  adapt  it 
to  the  business  to  be  carried  on  by  the  lessees.  Some  time  in  the  fall 
the  lessees  entered  under  the  lease.  In  some  little  time  afterwards 
one  Schoeding  became  associated  with  Werner,  and  the  room  was 
extensively  altered  and  fitted  up  by  the  tenants  with  bowling-alleys, 
which  were  put  down  and  connected  with  the  floor  and  sleepers  in  a 
very  substantial  manner.  The  changes  were  numerous  and  thorough, 
and  the  character  of  the  establishment  was  completely  altered.  In 
the  course  of  a  few  months  the  defendant  Kusterer  united  in  himself 
the  whole  leasehold  interest,  by  purchase  or  otherwise,  and  on  the 
24th  of  May,  1870,  assigned  to  the  defendant  Conkey,  and  took  back 
a  chattel  mortgage  to  secure  three  hundred  and  fifty  dollars  of  the 
purchase  price.  In  this  transaction  Kusterer  assumed  to  sell  and 
take  back  a  mortgage  upon  the  alleys  and  other  fittings,  and  they 
were  described  in  the  mortgage  as  "  all  and  singular  the  bar,  bar 
fixtures,  ice  box,  four  bowling-alleys,  with  the  balls  and  pins  apper- 
taining thereto,  with  all  the  chairs  and  tables  therein,  one  chandelier 
over  the  bar,  two  street  lamps  and  signs,  with  all  keys,  faucets,  stock 
on  hand,  and  all  fixtures  and  furniture,  all  in  the  Court  Place  saloon, 
so  called,  in  the  basement  of  the  Phcenix  block,  so  called,  on  the 
north  side  of  Lyon  street,  in  said  city  of  Grand  Rapids,  being  the 
same  property  this  day  sold  by  said  Kusterer  to  said  Conkey,  and 
this  mortgage  being  given  for  a  part  of  the  purchase  price  thereof." 

About  June  1st,  1870.  Conkey  sold  the  same  property  to  James 
Irons,  the  complainant  in  the  cross-bill,  for  the  consideration  of 
one  thousand  and  fifty  dollars,  and  Irons  assumed,  as  part  of  the 
consideration,  the  payment  of  the  chattel  mortgage  given  by  Conkey 
to  Kusterer.  At  this  time  Kusterer  assured  Irons  that  the  property 
was  "all  right,"  and  that  he  would  "stand  between  him  (Irons)  and 
all  harm."  A  controversy  had  previously  arisen  between  the  com- 
plainants in  the  original  bill,  O'Brien  and  Calkins,  and  Kusterer,  as 
to  the  ownership  of  the  alleys  and  some  other  things  in  the  estab- 
lishment. 


238      CONSTITUENTS   AND   INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

O'Brien  and  Calkins  claimed  that  the  bar,  bar  fixtures,  cupboard, 
bowling-alley  ways  and  racks,  were  permanent  fixtures  and  belonged 
to  them  as  owners  of  the  reversion,  and  the  defendant  Kusterer 
insisted  that  they  were  removable  articles  and  subject  to  and  held  by 
his  mortgage  from  Conkey.  The  mortgage  becoming  due,  and  Irons 
declining  to  pay  it  while  the  title  to  the  property  was  thus  in  dis- 
pute, Kusterer  threatened  to  enforce  his  mortgage  lien  and  remove 
the  property  from  the  premises.  O'Brien  and  Calkins  thereupon 
filed  the  original  bill  to  prevent  any  interference  with,  or  removal 
of,  the  property  claimed  by  Kusterer,  and  to  restrain  the  alleged 
injury  and  waste  which  a  removal  would  be  likely  to  produce.  Irons 
then  filed  the  cross-bill  to  protect  his  interests  as  they  should  be 
affected  by  results. 

The  Circuit  Court,  in  passing  upon  the  case  of  the  original  bill, 
decreed  that  the  bar,  bar  fixtures,  cupboard,  bowling-alley  ways  and 
racks  were  fixtures  attached  to  the  building,  and  owned  by  com- 
plainants, and  awarded  a  perpetual  injunction;  and  in  passing  upon 
the  cross-cause  adjudged  that  the  defendant  Kusterer  should  pay  to 
Irons  nine  hundred  dollars,  with  interest  thereon  from  June  24th, 
1870,  in  the  place  of  the  fixtures. 

But  two  questions  were  made  on  the  hearing  in  this  court.  The 
first  being  whether  the  things  in  question  were  so  annexed  to  the 
freehold  as  to  belong  to  it.  This  question  is  decisively  answered  in 
the  affirmative  by  the  evidence,  and  it  would  be  a  waste  of  time  to 
repeat  it. 

The  second  question  is  whether  Calkins'  conduct  was  such  as  to 
estop  himself  and  O'Brien  from  claiming,  against  the  mortgage 
right  of  Kusterer,  that  the  property  was  permanently  and  immovably 
attached,  and  I  think  upon  a  fair  estimate  of  the  evidence  this  ques- 
tion should  be  answered  in  the  negative. 

Kusterer  was  a  tenant  holding  of  Calkins  and  O'Brien  when  the 
annexations  were  made,  and  they  are  to  be  considered  as  made  by 
his  direction  and  authority,  or  at  all  events,  with  his  sanction;  and 
by  itself,  his  sale  of  the  things  so  annexed,  as  personalty,  and  the 
taking  a  chattel  mortgage  back  upon  them,  could  not  invest  him 
with  any  new  right  as  against  his  landlord.  Such  a  transaction, 
Standing  alone,  could  not  affect  the  right  of  the  landlord  derived 
from  the  annexation.  It  might  tend  more  or  less  to  show  that  the 
tenant  'lid  not  consider  the  fixtures  immovable.  But  the  landlord 
would  nol  In-  concluded,  unless  shown  in  some  satisfactory  way  to 
have  assented  to  their  being  dealt  with  by  the  tenant  as  personalty, 
or  things  removable. 

The   fixtures   now   in   question  were  made  a  part  of  the  realty,  so 


V.  i.]  FIXTURES  :    ANNEXATION.  239 

far  as  mechanical  annexation  could  make  them  so,  before  Kusterer 
sold  to  Conkey  and  got  the  mortgage  back;  and  the  evidence  does 
not  show  that  when  that  annexation  occurred,  it  was  one  which  left 
the  tenant  at  liberty  to  sever  and  remove  what  was  annexed.  When 
this  transaction  with  Conkey  occurred,  Kusterer  had  no  title,  as 
against  O'Brien  and  Calkins,  to  these  things  as  personalty,  and  he 
gained  none  by  the  mortgage  from  Conkey,  unless  O'Brien  and 
Calkins  in  some  way  waived  or  relinquished  their  right  derived  from 
the  annexation,  or  precluded  themselves  from  asserting  it  against 
him,  and  this,  I  think  the  evidence,  when  fairly  considered,  shows 
they  did  not  do. 

The  decree  below  should  be  affirmed,  with  costs. 


CROSS  v.  MARSTON. 
17  Vermont,  533.  —  1845. 


Hebard,  J.  — There  is  no  question  made  by  either  side  but  that 
the  articles  in  controversy  in  this  suit,  at  the  time  the  plaintiff 
became  possessed  of  them,  were  personal  property;  but  it  is  insisted 
that  they  became  attached  to  the  building,  and  passed  by  the  deed 
from  Day  to  the  defendant  on  the  22d  of  April,  1843.  The  plaintiff 
purchased  the  articles  in  question  in  1836,  while  he  and  Day  had  a 
mortgage  upon  the  building,  in  which  they  then  were,  and  took  the 
case  of  drawers  from  the  building  and  carried  them  to  his  store.  In 
1838,  Day,  who  had  then  acquired  the  whole  title  to  the  building, 
carried  the  case  of  drawers  back  to  the  building  and  leased  the  build- 
ing for  a  book  store;  and  at  this  time  the  case  of  drawers  was  put  in 
its  original  place  and  nailed  to  the  wall,  —  but  in  such  manner  that 
it  might  be  taken  away  without  injury  to  the  case  of  drawers,  or  to 
the  building;  and  in  this  situation  it  remained  until  1843,  when  Day 
deeded  the  premises  to  the  defendant;  —  and  it  appears,  also,  from 
the  case,  that  the  plaintiff  was  not  ignorant  of  the  disposition  and 
use  of  the  case  of  drawers. 

The  case  was  disposed  of  by  the  County  Court,  by  their  informing 
the  parties,  that  they  should  instruct  the  jury,  that  these  articles 
were  so  far  fixed  to  the  freehold,  that  they  would  pass  by  Day's  deed 
to  the  defendant;  and  that,  if  the  plaintiff  knew  of  Day's  putting 
them  into  the  shop,  in  the  situation  described,  as  early  as  1838,  and 
acquiesced  in  their  remaining  there  until  after  the  sale,  he  would 
stand  in  no  better  situation,  in  regard  to  the  property,  than  Day 
would,  had  he  owned  it;  and  that  the  jury  might  infer  the  acqui- 
escence of  the  plaintiff,  in  the  use  to  which  Day  put  the  articles,  from 


240      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CI1.  II. 

his  long  silence, — he  knowing  of  that  use.  The  argument  of  the 
case  has  proceeded  mainly  with  reference  to  the  fact,  whether  this 
property,  by  the  use  to  which  it  had  been  put,  had  become  a  fixture. 

This  question  about  fixtures  most  frequently  arises  between  land- 
lord and  tenant.  As  between  grantor  and  grantee,  it  is  more  proper 
to  inquire  whether  the  thing  was  so  attached  to  the  freehold,  that  it 
will  pass  by  the  deed;  and  such  is  the  case  in  numerous  instances, 
when  the  same  thing  might  have  been  taken  away  by  the  tenant. 
And  in  all  these  cases,  the  party  fixing  the  chattel  to  the  freehold, 
was,  at  the  time,  the  owner  of  it.  Such  was  not  the  fact  in  this 
case.  The  thing  was  originally  a  chattel,  and  the  plaintiff  was  the 
owner;  and  there  is  no  proof  that  he  ever  parted  with  his  title  to  it, 
except  by  the  act  of  Day,  and  his  own  acquiescence  in  that  act. 
And  the  inquiry  here  is,  whether  that  can  change  the  ownership  of 
the  property,  while  the  property  itself  preserves  its  identity. 

It  is  a  principle  of  law,  in  relation  to  this  subject,  that  the  owner 
may  pursue  his  property,  wherever  he  can  trace  it.  But  when  the 
property  has  lost  its  identity,  it  ceases  to  have  its  legal  existence;  — 
as,  if  one  man  should  convert  a  quantity  of  bricks  and  erect  them 
into  a  house,  and  then  deed  the  house  to  a  third  person,  these  bricks 
will  have  lost  their  identity,  —  they  are  so  changed  in  their  character 
that  they  cease  to  be  chattels,  and  the  owner  cannot  pursue  them 
against  such  third  person.  But  in  this  case  I  apprehend  there  was 
no  such  change  of  the  property,  as  would  give  it  a  different  character. 
The  nailing  it  to  the  building  did  not  incorporate  it  into  and  make 
it  a  part  of  the  building.  It  was  merely  a  part  of  the  furniture  of 
the  building,  and,  as  the  case  finds,  capable  of  being  taken  away 
without  injury  to  the  property,  or  to  the  house.  No  one  would 
doubt,  probably,  but  what  the  outgoing  tenant  would  have  the  right 
to  take  property  similarly  situated. 

That,  as  between  Day  and  the  defendant,  this  property  would 
have  passed  by  the  sale,  providing  Day  had  owned  it,  cannot  be 
decisive  of  the  question;  for  if  so,  it  would  apply  to  all  sales,  — as 
when  B.  sells  the  horse  of  A.  to  C,  as  between  B.  and  C.  the  title 
to  the  horse  passes;  but  A.,  being  the  owner,  may  pursue  the  horse, 
notwithstanding  the  sale.  The  main  question,  in  relation  to  this 
part  of  the  case,  is,  whether  the  property  has  lost  its  identity;  if  it 
has,  the  plaintiff  cannot  pursue  it;  if  it  has  not,  he  may  pursue  it 
into  whatever  hands  it  may  have  chanced  to  come. 

The  defendant  relies  somewhat  upon  the  case  of  Goddard  v. 
Holster,  (>  Greenl.  427.  But,  in  relation  to  that  case,  whatever  there 
may  he  peculiar  to  it,  the  ground  upon  which  it  was  put  does  not 
conflict  with   tin-   plaintiff's  claim  in  this  case.     That  decision  goes 


V.  i]  FIXTURES:    ANNEXATION.  241 

upon   the  ground   that  the  plaintiff's  brother,  in  the  erection  of  the 
mill,  and  the  putting  in  the  mill  stones  and  mill   irons,  acted  but  as 
the  agent  of  the  plaintiff;  and,  as  the  mill  was  on  the  plaintiff's  land, 
and  erected  by  the  plaintiff's  agent,  which  was  the  same  as  if  erected 
by  the  plaintiff  himself,  the  mill  and  all  its  attachments  were  the  prop- 
erty of    the  plaintiff.      No    such  consideration    is    involved    in    the 
case  now  before  us.     The  plaintiff  did  not  put  the  drawers  into  the 
building  himself,  nor  was  Day  his  agent  in  doing  it.     The  plaintiff 
had  no  interest  in  the  building,  nor  in  the  land  upon  which  it  stood 
This  case,  then,  loses  all  its  analogy  to  the  case  cited.     Miller  v 
Plit /nb,  6  Cow.  665,  presents  only  the  same  question,  that  would  arise 
if   Day  claimed  this  property  and  had  sued   the  defendant  for  it 
Cohgrave  v.   Dias  Santos,   9  E.  C.  L.  30,  is  to  the  same  effect;  the 
question   was,  whether  the  vendor  could  recover  of  the  vendee  for 
fixtures,  after  having  given  up  the  possession.     Long  staff '  v .  Meagoe, 
29  E.  C.  L.  60,  was  decided  upon  the  authority  of  the  case  of  Cole- 
grave  v.  Dias  Santos. 

The  conclusion,  therefore,  to  which  we  come,  is,  that  this  property 
was  not  so  attached  to  the  freehold,  as  to  change  its  character,  or 
lose  its  legal  existence.  It  once  being  the  property  of  the  plaintiff, 
it  will  continue  to  be  his,  until  he  has  parted  with  his  interest  in  it 
by  his  own  consent,  or  by  the  operation  of  some  law.  And  that 
presents  the  inquiry  in  relation  to  the  other  part  of  the  charge  of 
the  court.  The  jury  were  to  infer  an  acquiescence  on  the  part  of 
the  plaintiff  in  the  disposition  which  Day  made  of  the  property, 
from  his  long  silence. 

If  Cross  had  stood  by  and  seen  Day  sell  the  property,  without 
remonstrating,  he  would  be  estopped  from  claiming  it  of  the  pur- 
chaser; but  I  do  not  suppose  that  anything  is  to  be  inferred,  in  a 
legal  point  of  view,  unfavorable  to  his  claim,  simply  because  he  has 
delayed  to  assert  his  claim,  unless  barred  by  the  statute.  As  the 
claim  is  not  barred  by  the  statute,  and  as  the  case  does  not  find  that 
the  plaintiff  ever  stood  by  and  saw  Day  attempt  to  pass  over  the 
property,  without  objecting,  we  do  not  see  how  he  has,  either  by  his 
own  consent,  or  by  the  operation  of  law,  parted  with  his  interest  in 
the  property,  or  forfeited  his  right  to  pursue  and  claim  his  property 
wherever  he  can  find  it. 

Indeed,  the  question  of  acquiescence,  it  seems  to  me,  has  nothing 
to  do  with  the  case.  If  Day  could  transfer  a  title  in  the  property 
to  the  defendant,  it  was  because  it  had  ceased  to  be  a  chattel  inter- 
est; if  that  was  the  condition  of  the  property,  it  was  the  attaching 
the  property  to  the  building,  that  wrought  the  metamorphosis; 
therefore  the  property  became  changed,  and  the  plaintiff  lost  his 

LAW  OF  PROP.   IN  LAND  —  l6 


242      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

interest  in  it  the  moment  the  nail  was  driven,  if  he  ever  lost  it. 
But  we  have  already  said  that  this  was  not  such  a  use  of  the  property 
as  was  inconsistent  with  the  nature  and  character  of  the  property 
itself,  or  with  the  plaintiff's  claim  and  title  to  it. 

Judgment  reversed. 


MURDOCK  v.  GIFFORD. 

iS  New  York,  28.  —  1858. 


Johnson,  Ch.  J.  —  The  question  in  this  case  is,  whether  the 
twenty-five  broad  looms  levied  upon  under  the  executions  of  the 
defendants,  Gifford,  Sherman,  and  Innis,  were  personal  property; 
or  whether,  as  being  part  of  the  realty,  they  were  bound  by  the  lien 
of  the  mortgage  which  the  plaintiffs  are  seeking  to  foreclose.  The 
mortgage  was  of  "  all  that  estate  and  real  property,  known  as  the 
Owasco  Woolen  Factory,  situate  on  the  Owasco  outlet,  in  the  city  of 
Auburn,  county  of  Cayuga  and  State  of  New  York,  the  same  being 
the  plot  of  ground,  buildings  and  water  privileges  lately  owned  by 
the  Auburn  Woolen  Company,  and  the  same  being  all  the  property 
recently  conveyed  by  the  trustees  of  said  company,  by  deed  to 
Harris  &  Waterman;  and  it  is  intended  that  the  whole  property  con- 
veyed by  said  deed,  and  every  part  thereof,  is  included  in  and 
covered  by  this  deed,  with  all  the  machinery  and  the  fixtures  of  all 
kinds  whatever  now  in  the  mills  lately  belonging  to  said  woolen  com- 
pany, together  with  all  and  singular  the  tenements,  hereditaments  and 
appurtenances,"  etc.  Conceding  that  the  looms  now  in  question 
were  intended  to  pass  and  did  pass  by  the  terms  of  the  mortgage, 
the  question  is,  whether  they  passed  as  part  of  the  real  estate.  For 
if  they  did  not  pass  as  realty,  then  it  was  necessary,  as  there  was  no 
actual  change  of  possession,  that  the  mortgage  should  be  filed  as  a 
chattel  mortgage,  which  was  not  done.  The  question  for  this  pur- 
pose is,  therefore,  the  same  as  would  have  been  presented  if  the 
mortgage  had  described,  by  metes  and  bounds,  and  had  conveyed, 
in  terms,  the  land  on  which  the  factory  was  situated,  without  speci- 
fying the  building,  machinery  and  fixtures.  For,  although  the  intent 
of  parties  is  to  govern  as  to  the  subject  on  which  a  conveyance  is  to 
operate,  it  is  beyond  their  power  to  make  a  conveyance  operative 
without  a  compliance  on  their  part  with  the  rules  of  law  in  respect 
to  the  mode  of  conveyance  appropriate  to  the  kind  of  property 
sought  to  be  conveyed.  As  they  could  not,  by  writing  without  seal, 
pass  the  title  of  land,  though  their  written  agreement  termed  it  per- 
sonalty and  declared  it  should  pass,  so  they  cannot,  by  an  instrument 


V.   i.]  FIXTURES:    ANNEXATION.  243 

and  by  ceremonies  appropriate  to  pass  land,  transfer  chattels  in 
mortgage,  as  against  creditors  of  the  mortgagors,  without  either  an 
actual  change  of  possession,  or  filing  the  instrument  as  a  chattel 
mortgage. 

The  question  then  is,  were  these  looms  realty  as  between  mort- 
gagor and  mortgagee?  Between  these  parties  and  between  grantor 
and  grantee,  the  effort  of  a  court  is  always  to  ascertain  the  intent 
of  the  parties,  and  to  give  it  effect.  If  their  language  affords  evi- 
dence that  a  chattel  is  intended  to  pass,  it  will  pass,  of  course, 
whether  it  be  a  mere  chattel  or  one  which  by  annexation  has  become 
part  of  the  realty.  But  where  no  specific  intention  is  collectible,  or 
where  the  conveyance  is  of  land  by  metes  and  bounds,  and  on  the 
land  a  building  stands  in  which  is  the  thing  in  controversy,  there  it 
will  pass  or  not,  according  as  the  thing  is  or  is  not,  in  law,  part  of 
the  realty.  In  such  a  case,  the  only  specific  intention  is,  that  the 
realty  shall  pass,  and  the  inquiry  to  which  a  court  in  such  a  case 
addresses  itself  is,  does  the  law  regard  the  thing  in  question  as  per- 
taining to  the  realty?  It  is  obvious  that  this  question  presents  itself 
in  the  neatest  way,  completely  unembarrassed  by  any  collateral  con- 
sideration, upon  the  death  of  the  general  owner  in  fee  of  the  land. 
The  chief  distinction  between  the  different  species  of  property,  is  in 
the  course  of  devolution  on  the  general  owner's  death.  Realty 
goes  to  the  heir,  personalty  to  executor  or  other  personal  repre- 
sentative. Accordingly,  the  cases  of  heir  and  executor,  and  of 
vendor  and  vendee,  in  the  absence  of  evidence  of  specific  intention, 
have  always  been  deemed  identical  in  respect  to  their  right  in  a 
chattel  claimed  to  be  a  part  of  the  realty.  It  was  so  held  in  21  Hen. 
7th,  26,  and  it  has  continuously  since  been  so  held.  Holmes  v. 
Tremper,  20  Johns.  30;  Miller  v.  Plumb,  6  Cow.  668;  Farrar  v. 
Chaufetete,  5  Denio,  527.  And  whenever  it  has  become  necessary 
to  consider  such  a  question  between  vendor  and  vendee,  resort  has 
been  had  for  its  solution  to  the  case  of  heir  and  executor,  where 
the  same  question  was  presented,  unembarrassed  by  evidence 
of  any  particular  intention;  a  kind  of  evidence  from  which  a 
deed  from  grantor  to  grantee  would  rarely  be  free.  A  stat- 
ute, therefore,  determining  the  course  of  devolution  of  prop- 
erty on  the  death  of  the  general  owner,  if  it  is  not  conclusive  to  fix 
the  character  of  property  for  all  purposes,  is  at  least  very  strong 
evidence  in  respect  to  its  legal  character.  When  the  statute  gives 
a  particular  species  of  property  to  the  executor,  and  gives  lands, 
tenements  and  hereditaments  to  the  heir,  it  should  be  regarded  at 
least  as  furnishing  very  clear  proof,  that  in  the  legislative  mind  that 
kind  of  property  is  considered  as  not  being  in  any  sense  included  in 


244      CONSTITUENTS   AND    INCIDENTS    OF    LAND.      [I'T.  II.   CH.  II. 

lands,  tenements  or  hereditaments.  The  Revised  Statutes  (2  R.  S. 
83,  sec.  7)  declare  that  things  annexed  to  the  freehold,  or  to  any 
building,  shall  not  go  to  the  executor,  but  shall  descend  with  the 
freehold  to  the  heirs  or  devisees,  except  such  fixtures  as  are  men- 
tioned in  the  fourth  subdivision  of  the  sixth  section,  and  that  subdi- 
vision declares  that  "  things  annexed  to  the  freehold  or  to  any  build- 
ing, for  the  purpose  of  trade  or  manufacture,  and  not  fixed  into  the 
wall  of  a  house,  so  as  to  be  essential  to  its  support,"  shall  be  deemed 
assets,  and  shall  go  to  the  executors  or  administrators. 

The  looms  in  question  were  merely  placed  on  one  of  the  floors  of 
the  factory,  and  were  fastened  to  the  floor  by  means  of  ten  screws 
in  each  loom,  as  the  case  states,  "  merely  for  the  purpose  of  keeping 
the  said  looms  in  their  places  and  in  a  steady  position,  and  not 
otherwise,  during  the  operation  and  working  of  the  said  looms  " 
They  were  worked  by  a  band  carried  by  the  fixed  machinery.  Any 
one  of  them  could  be  separately  disconnected  with  the  motive  power, 
and  they  could  be  easily  and  conveniently  removed  without  injury 
to  themselves  or  to  the  building. 

In  House  v.  House,  10  Paige,  158,  the  chancellor  had  occasion  to 
consider  the  statutory  provisions  which  have  been  cited,  and  he 
observes  that  it  was  impossible,  in  a  sentence  of  three  lines,  to  define 
what  was  to  be  considered  as  part  of  the  freehold  itself,  and  what 
mere  fixtures  or  things  annexed  to  the  freehold  for  the  purposes  of 
trade  or  manufacture;  and  that  it  was,  therefore,  still  necessary  to 
resort  to  the  principles  of  the  common  law  and  to  the  decisions  of  the 
courts,  in  order  to  ascertain  what  is  a  substantial  part  of  the  freehold 
and  what  is  a  thing  annexed  thereto  for  the  purpose  of  trade  or 
manufacture.  These  observations  are  certainly  just;  for  it  is  quite 
obvious  that  the  statute  does  not  mean  that  the  executor  shall  take 
everything  not  essential  to  the  support  of  the  walls  of  a  building, 
but  that  only  such  things  are  spoken  of  as  are  not  a  constituent 
part  of  the  freehold,  or  of  the  artificial  structure  erected  on  the  land. 

The  case  Lawton  v.  Salmon,  decided  by  Lord  Mansfield,  and 
reported  in  a  note  to  Fitzherbert  v.  Shaw,  1  H.  Bl.  25S,  furnishes  a 
criterion  by  which  the  character  of  chattels  annexed  to  the  freehold 
may  be  determined.  That  was  a  case  of  salt-pans,  made  of  ham- 
mered iron  and  riveted  together,  which  were  brought  into  the  salt- 
house  in  pieces  and  might  be  removed  in  pieces.  Davenport,  for 
the  defendant,  argued  that  if  the  salt-pans  were  removed,  the  house 
would  go  useless  to  the  heir  and  the  executor  gain  nothing  but  old 
iron.  Lord  Mansfield  says:  '  The  salt  spring  is  a  valuable  inheri- 
tani  e,  but  no  profit  arises  from  it  unless  there  is  a  salt-work,  which 
ists  of  a   building,  etc.,  for  the  purpose  of  containing  the  pans, 


V.   i.]  FIXTURES:    ANNEXATION.  245 

etc.,  which  are  fixed  to  the  ground.  The  inheritance  cannot  be 
enjoyed  without  them.  They  are  accessories  necessary  to  the 
enjoyment  and  use  of  the  principal.  The  owner  erected  them  for 
the  benefit  of  the  inheritance,  he  could  never  mean  to  give  them  to 
the  executor,  and  put  h;m  to  the  expense  of  taking  them  away  with- 
out any  advantage  to  him,  who  could  only  have  the  old  material,  or 
a  contribution  from  the  heir  in  lieu  of  them."  The  ground  of  the 
decision  was,  that  the  pans  had  a  specific  relation  to  the  inheritance. 
They  were  adapted  to  use  in  connection  with  the  inheritance,  and, 
by  removal,  would  lose  all  the  value  which  that  adaptation  gave 
them,  and  become  merely  old  iron.  It  was  this  on  which  the  case 
turned.  The  specific  form  which  the  iron  had  received,  fitted  the 
pans  for  use  with  and  made  them  valuable  in  relation  to,  the  inheri- 
tance, and  not  valuable  as  property  unconnected  with  the  inheritance. 
Applying  this  principle  to  the  case  of  a  factory,  the  wheel  or  engine 
which  furnishes  the  motive  power,  and  all  that  part  of  the  gear- 
ing and  machinery  which  has  special  relation  to  the  building  with 
which  it  is  connected,  would  belong  to  the  freehold;  while  an  inde- 
pendent machine  like  a  loom,  which,  if  removed,  still  remains  a  loom, 
and  can  be  used  as  such  wherever  it  is  wanted  and  power  can  be 
applied  to  it,  will  still  retain  its  character  of  personalty.  With  the 
rule  as  thus  stated,  many  of  the  cases  coincide,  and  those,  too, 
which  have  been  carefully  examined.  Powell  v.  Monson  Co.,  3 
Mason,  459;  Gale  v.  Ward,  14  Mass.  352;  Cresson  v.  Stout,  17  John. 
117;  Swift  v.  Thompson,  9  Conn.  63;  Teaff  v.  Hewitt,  1  McCook, 
511;  Vanderpoel  v.  Van  Allen,  10  Barb.  157.  It  is  true  that,  upon 
this  subject,  all  the  cases  cannot  be  reconciled,  and  that  perhaps  no 
rule  can  be  laid  dov\n,  in  abstract  terms,  which  will  furnish  a  clear 
guide  in  every  case.  But  in  respect  to  the  species  of  property,  the 
rule  we  act  upon  in  this  case  is  not  difficult  of  application,  and  it 
will,  we  think,  generally  coincide  with  the  actual  intention  of  per- 
sons erecting  and  owning  such  property. 


McKEAGE  v.  HANOVER  FIRE  INSURANCE   CO. 

81  New  York,  38.  —  1880. 

Rapallo,  J.  — The  mirrors  and  gas  fixtures  in  controversy  were 
placed  in  the  house  in  1870  by  Mr.  Curtis,  who  was  then  owner 
thereof.  We  concur  with  the  court  below  in  its  conclusion  that 
they  were  not  so  attached  to  the  building  as  to  form  part  of  the 
realty.     Gas  pipes  which  run  through  the  walls  and  under  the  floors 


246      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

of  a  house,  are  permanent  parts  of  the  building,  but  the  fixtures 
attached  to  these  pipes  are  not.  They  are  not  permanently  annexed 
but  simply  screwed  on  projections  of  the  pipes  from  the  walls,  left 
for  that  purpose,  and  can  be  detached  by  simply  unscrewing  them. 
It  was  shown  that  the  fixtures  in  question  were  simply  put  on  in  the 
usual  way.  The  mirrors  were  not  set  into  the  walls,  but  were  put 
up  after  the  house  had  been  built,  being  supported  in  their  places 
by  hooks  or  supports,  some  of  which  were  fastened  with  screws  to 
the  wood  work  and  others  driven  into  the  walls,  and  were  capable 
of  being  easily  detached  from  these  supports  without  interfering 
with  or  injuring  the  walls.  All  these  articles  were,  in  their  nature, 
mere  furniture,  and,  therefore,  chattels,  and  not  appurtenances  to 
the  building.  Winslow  v.  Merchants'  Ins.  Co.,  4  Met.  311;  Vaughen 
v.  Haldeman,  $$  Penn.  523;  Rogers  v.  Crow,  40  Miss.  91;  Montague 
v.  Dent,  10  Rich.  L.  R.  (So.  Car.),  135;  Shaw  v.  Lenke,  1  Daly, 
487;  Lawrence  x.  Kemp,  1  Duer,  363;  Beck  v.  Rebow,  1  P.  Wms.  94. 
In  respect  to  such  articles,  the  mere  declaration  of  the  owner  that 
he  intends  that  they  shall  go  with  the  house  does  not  make  them 
realty.  They  no  more  constitute  part  of  the  realty  than  would 
pictures  supported  by  fastenings  driven  into  the  wall.  Assuming 
that  such  fastenings  or  support  become  part  of  the  building,  it  does 
not  follow  that  the  mirrors  or  pictures  which  they  support  acquire  the 
same  character. 

On  the  sale  of  the  house  by  Curtis  to  Nelson,  the  gas  fixtures  and 
mirrors  were  specially  bargained  for  and  purchased  by  Nelson,  with 
the  house.  They  were  not  mentioned  in  the  deed,  nor  was  any  bill 
of  sale  of  them  given,  but  these  were  not  necessary,  for  the  title  to 
the  chattels  passed  to  the  purchaser  by  delivery. 

Nelson,  after  this  purchase,  executed  the  mortgage  to  the  defend- 
ant, under  the  foreclosure  of  which  it  claims  these  chattels.  He 
testified  that  they  were  in  the  house  when  he  mortgaged  it,  and  that 
when  he  applied  for  the  loan  he  represented  to  the  defendant  that 
they  were  to  go  with  the  house;  that  the  house  included  mirrors,  gas 
fixtures  and  so  forth.  No  mention  of  them  was,  however,  made  in 
the  mortgage,  nor  was  any  separate  mortgage  of  them  given. 

Nelson  afterward  sold  and  conveyed  the  house  and  lot  to  one 
Shrope  who  afterward  conveyed  to  Cornelius  C.  Westervelt.  These 
conveyances  stated  that  the  premises  conveyed  were  subject  to  the 
mortgage  to  the  defendant,  but  made  no  mention  of  the  gas  fixtures 
and  mirrors. 

The  plaintiff's  tit  le  to  them  is  founded  upon  a  hill  of  sale  executed 
by  Westervelt  to  William  McKeage,  dated  the  nth  of  December, 
1874,  and   delivered    in    the   same   month,    purporting   to   have   been 


V.   i.]  FIXTURES:    ANNEXATION.  247 

made  in  consideration  of  $1,500.  Westervelt's  title  to  the  fixtures 
does  not  appear,  except  from  the  statement  in  defendant's  answer, 
that  they  passed,  by  the  deeds,  from  Nelson  to  Shrope  and  from 
Shrope  to  Westervelt.  Whether  there  was,  or  was  not,  any  further 
transfer,  written  or  verbal,  was  not  shown  on  the  trial.  They  may 
have  passed  in  the  same  way  that  they  did  from  Curtis  to  Nelson. 
It  was  shown,  however,  that  Westervelt  was  in  possession  of  them 
at  the  time  of  the  execution  by  him  of  the  bill  of  sale  to  William 
McKeage,  and  that  he  delivered  possession  of  them  to  McKeage,  to 
whom  he  had  contracted  to  sell  the  house,  together  with  the  gas 
fixtures  and  mirrors.  This  was  sufficient  prima  facia  evidence  of 
Westervelt's  title,  which  was  not  disputed. 

Before  the  foreclosure  sale  McKeage  paid  a  large  part  of  the  pur- 
chase-money payable  under  his  contract  with  Westervelt,  by  convey- 
ing to  him  certain  real  estate  in  New  Jersey,  which  was,  by  the  con- 
tract, to  be  taken  as  a  payment  of  $23,000  of  such  purchase-money. 

The  sale,  under  the  foreclosure  of  the  defendant's  mortgage  took 
place  in  April,  1875.  The  defendant  became  the  purchaser  and 
received  a  deed  from  the  referee;  this  deed  contained  no  mention 
of  the  articles  in  controversy.  The  defendant,  however,  cla'med 
that  they  passed  by  this  deed  as  part  of  the  realty,  and  prevented 
McKeage  from  removing  them. 

The  claim  that  they  became  part  of  the  realty  by  annexation  can- 
not be  sustained,  for  the  reasons  before  stated,  but  the  defendant 
contends  that  by  reason  of  the  verbal  representations  and  state- 
ments made  by  Nelson,  when  negotiating  for  the  loan,  they  should 
be  deemed  part  of  the  realty  and  covered  by  the  mortgage.  These 
statements  could  not  change  the  character  of  the  property,  and  even 
if  some  equity,  as  between  Nelson  and  the  defendant,  could  be 
claimed  by  reason  of  these  representations,  subsequent  purchasers 
for  value,  having  no  notice  of  them,  could  not  be  affected  thereby. 
It  does  not  appear,  nor  is  it  alleged,  that  before  the  foreclosure  sale, 
either  Shrope,  Westervelt,  or  McKeage  had  any  such  notice,  and  it 
does  appear  that  Wm.  McKeage,  before  defendant  claimed  the  arti- 
cles, paid  a  large  part  of  the  purchase  money  payable  under  his  con- 
tract with  Westervelt,  which  contract  embraced  the  chattels  in 
question.  There  was  no  legal  mortgage  of  them,  and  the  purchaser 
from  Westervelt,  without  notice  was  not  affected  by  a  merely 
equitable  lien  of  the  mortgagee,  if  any  such  existed.  Nor  was  any 
such  lien  asserted  or  enforced  in  the  foreclosure  suit.  We  do  not, 
however,  intend  to  decide  that  such  a  lien  did  exist. 

It  is  further  claimed  that  Wm.  McKeage,  having  been  present  at 
the  foreclosure  sale,  and  having  failed  to  give  any  notice  of  his  claim 


248      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CII.  II. 

of  title  to  the  chattels,  his  silence  estops  him  from  asserting  it 
against  the  purchaser.  It  is  sufficient  to  say  on  this  point,  that  the 
property  exposed  for  sale  was  the  house  and  lot  only,  and  there  was 
no  announcement  that  the  chattels  in  question  were  to  be  included 
in  the  sale.  There  was  no  occasion,  therefore,  for  any  protest  or 
other  proceedings  on  the  part  of  McKeage. 

The  plaintiff  claims  by  assignment  from  Wm.  McKeage  executed 
after  the  cause  of  action  for  a  conversion  of  the  property  by  the 
defendant  had  accrued.  This  assignment  transferred  McKeage's 
title  to  the  property  as  well  as  the  cause  of  action.  The  considera- 
tion for  it  was  not  a  material  subject  of  inquiry  so  long  as  it  was 
valid  between  the  parties,  and  a  recovery  by  the  plaintiff  would  pro- 
tect the  defendant  against  any  claim  by  Wm.  McKeage. 

The  judgment  should  be  affirmed. 

Judgment  affirmed.1 


HOYLE  v.  PLATTSBURGH  AND  MONTREAL  RAIL- 
ROAD CO. 

54  New  York,  314.  —  1873. 

Suit  to  foreclose  two  mortgages  given  by  the  Plattsburgh  and 
Montreal  R.  R.  Co.  upon  its  railway,  corporate  and  other  franchises 
and  equipments.  The  instruments  were  duly  recorded  as  real  estate 
mortgages  but  were  not  filed  under  the  chattel  mortgage  act  of  1833. 
The  defendant  Vilas  answers,  claiming  to  be  the  owner  of  the  roll- 
ing-stock of  the  road  under  execution  sales  made  since  the  giving  of 
the  mortgages. 

A  reference  was  ordered  to  determine  whether  or  not  the  rolling- 
stock  was  subject  to  the  lien  of  the  mortgages.  The  referee  held 
that,  though  the  mortgages  covered  the  property  in  question,  they 
were  void  as  to  that  property,  as  against  subsequent  judgment 
creditors  because  not  filed  as  chattel  mortgages.  Plaintiff  excepted 
and  the  exceptions  were  allowed  by  the  Special  Term,  which  decision 
the  General  Term  upheld.      Defendant  now  appeals  to  this  court. 

Johnson,  C.  —  The  first  question  necessarily  to  be  decided  in  this 
case  is,  whether  the  rolling  stock  of  a  railroad  is  personal  property, 
or  whether  it  is  to  be  deemed  constructively  annexed  to  the  road 
upon  which  it  runs,  so  as  in  law  to  be  regarded  as  part  of  the  realty. 
If  it  If  determined  that  rolling-stock  retains  its  character  of  persona] 
property,  then  the  question  arises  whether  a  mortgage  of  a  railroad 

1  Sec  also  McRae  v.  Bank,  j>.  271,  infra. 


V.   i.]  FIXTURES:    ANNEXATION.  249 

and  its  equipment  needs  to  be  filed  under  the  statute  of  1833,  requir- 
ing mortgages  of  personal  property  to  be  filed  when  the  possession 
of  the  property  is  not  immediately  delivered  to  the  mortgagee.  Laws 
of  1833,  chap.  279,  p.  402.  The  questions  thus  presented  are  not 
authoritatively  determined  in  this  State.  The  opinion  of  the  Supreme 
Court  has  been  given  in  four  reported  cases.  The  earliest  was  that 
of  The  Farmers'1  Loan  and  Trust  Co.  v.  Hendrickson,  25  Barb.  484,  in 
which  the  judgment  rendered  in  October,  1857,  by  Justices  S.  B. 
Strong,  Birdseye  and  Davies,  declared  that  as  between  mortgagees 
and  judgment  creditors  the  rolling-stock  was  to  be  deemed  fixtures, 
and  consequently  that  such  a  mortgage  did  not  need  to  be  filed  under 
the  act  of  1833.  In  this  case  the  mortgage  specified  engines,  tenders, 
cars,  etc.,  as  part  of  the  property  mortgaged,  and  the  rights  of  the 
plaintiffs  might  have  been  sustained  by  holding  either  that  the 
chattel  mortgage  law  did  not  apply  to  railroad  mortgages,  or  that 
engines  and  cars  were  fixtures.  The  court  rejected  the  former 
ground  and  placed  the  decision  on  the  position  that  the  rolling-stock 
was  part  of  the  realty. 

In  Stevens  v.  The  Buffalo  &  AT  V.  C.  R.  R.,  31  Barb.  590,  decided 
in  September,  1858,  Justices  Green,  Grover  and  Marvin  held  that 
rolling-stock  was  personalty,  and  that  a  mortgage  thereof  was 
required  to  be  filed  under  the  act  of  1833.  Elaborate  opinions  were 
written  in  support  of  these  conclusions,  in  which  the  Hendrickson 
Case,  before  cited,  and  that  of  Coe  v.  Hart,  in  the  United  States 
Circuit  Court,  before  Mr.  Justice  McLean,  that  of  Corey  v.  The  Pitts- 
burgh 6°  F.  W.  R.  Co.,  and  Mitchell  v.  Winslow,  2  Story,  690,  were 
examined  with  the  result  before  mentioned. 

In  December,  1859,  Mr.  Justice  Allen  decided  Beardsley  v.  Ontario 
Bank,  31  Barb.  619.  The  mortgage  was  of  the  railroad,  real  estate, 
chattels  and  franchises  of  the  corporation.  It  was  held  that  the 
rolling-stock  was  not  covered  by  the  mortgage,  not  being  part  of 
the  realty.  The  last  two  decisions  were  acquiesced  in;  the  first, 
the  case  of  Hendrickson,  was  taken  to  the  Court  of  Appeals  in  1863, 
and  resulted  in  an  order  for  reargument,  and  subsequently  the  case 
was  settled.  The  case  now  under  consideration  is  reported  in  47 
Barb.  109,  before  Justice  Sutherland,  at  Special  Term  in  1867.  He 
held  that  rolling-stock  does  not  become  part  of  the  realty,  and  that 
it  passed  by  the  two  mortgages  in  question,  as  specially  named,  and 
not  as  part  of  the  realty.  •  He  also  held  that  mortgages  of  the  cor- 
porate property  and  franchises  of  railroads  should  not,  as  to  the 
personal  property  covered  by  them,  be  deemed  to  be  subject  to  the 
provisions  of  the  chattel  mortgage  act  of  1833.  At  General  Term 
the  case  came  before    Justice   Ingraham,  Sutherland  and  G.  G.  Bar- 


250      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

nard,  and  the  decision  appealed  from  was  affirmed,  Judge  Ingraham 
giving  the  only  opinion.  After  declaring  himself  not  prepared  to 
accede  to  the  opinion  at  Special  Term,  that  rolling-stock  is  in  all 
cases  to  be  considered  as  personal  property,  he  holds  that  the  intent 
of  the  parties  is  evident  that  the  rolling-stock  should  pass  as  part 
of  the  realty,  and  that  such  a  construction  should  be  given  to  the 
transaction.  He  further  holds  that  the  chattel  mortgage  act  does 
not  apply  to  a  mortgage  executed  by  a  railroad  company  under 
authority  of  section  28  of  the  general  railroad  act  of  1850.  That 
section  warrants  a  mortgage  of  the  corporate  property  and  fran- 
chises of  a  railroad  company  to  raise  moneys  for  completing,  finish- 
ing or  operating  its  road.  Such  a  mortgage  was  intended  by  the 
Legislature,  the  learned  judge  says,  to  be  treated  as  a  mortgage  of 
the  road  and  its  accessories,  and,  therefore,  need  not  be  filed  as  a 
chattel  mortgage.  While  upon  each  proposition  involved,  a  majority 
of  judges  appear  to  have  been  against  the  claim  that  rolling-stock 
may  be  effectually  mortgaged  without  filing,  under  the  act  of  1833, 
the  question  still  remains  open  for  decision. 

In  respect  to  the  legal  methods  of  disposition,  all  property  is  dis- 
tributed by  law  under  the  head  either  of  real  or  personal ;  and  in  order 
effectually  to  be  disposed  of,  the  act  of  disposition  must  conform  to 
the  mode  appropriate  to  the  kind  of  property.  What  method  shall 
be  sufficient  to  transfer  property  is  matter  of  positive  regulation  by 
law;  and  it  is  not  in  the  power  of  parties  to  waive  or  alter,  by  their 
private  agreement,  any  of  these  regulations.  These  regulations 
have  been  adopted  with  regard  not  only  to  the  interests  of  the  parties 
immediately  concerned,  but  also  with  regard  to  the  interest  of  others 
in  ascertaining  the  ownership  of  property.  In  regard  to  realty,  a 
conveyance  by  metes  and  bounds  of  a  parcel  of  land  carries  with  it 
everything  which  the  law  recognizes  as  part  of  the  realty,  whether 
it  was  originally  personal  in  its  nature  or  not,  as  fully  and  com- 
pletely as  by  the  most  minute  enumeration  and  specification.  It 
draws  to  itself  and  binds  everything  afterward  made  part  of  the  land 
by  any  method  of  annexation  or  affixing  which  the  law  recognizes  as 
effectual,  whether  actual  or  constructive  in  character.  Murdoch  v. 
Gifford,  18  N.  Y.  30;  Matt  v.  Palmer ,  1  Comst.  564;  Leroy  v.  Piatt, 
4  Paige,  77. 

In  view  of  these  well  settled  and  universally  recognized  rules,  the 
sui  h  as  Prim  v.  Emery,  32  N.  H.  484,  and  Pinnock  v.  Coe, 
23  How.  1  17,  which,  as  well  on  grounds  of  reason  as  authority,  labor 
to  maintain  that  after-acquired  rolling-stock  is  bound  by  a  previous 
mortgage,  that  in  terms  is  declared  to  bind  such  after-acquired  prop- 
erty—  point   irresistibly   to   the  conviction  that  rolling-stock  is  not 


V.   i.]  FIXTURES:    ANNEXATION.  25 1 

part  of  the  realty.  No  one  ever  doubted  that  a  mortgage  of  land 
bound  a  house  subsequently  built  upon  it;  nor  that  it  bound  any- 
thing originally  personal  which  became  afterward  part  of  the  land. 
The  labored  attempt  to  prove  that  rolling-stock,  acquired  after  the 
date  of  the  mortgage,  will  be  bound  by  it,  shows  how  strongly  the 
incongruity  is  perceived  of  treating  it  as  part  of  the  realty. 

The  general  doctrine  is,  that  things  originally  personal  in  their 
nature  remain  personal,  though  used  in  connection  with  land.  All 
the  implements  of  agriculture  have  their  use  only  in  the  cultivation 
of  land;  and  yet  they  are  never  thought  to  be  part  of  the  realty. 
Some  element  of  annexation,  usually  physical  in  its  character,  is  the 
common  criterion  for  determining  whether  things  personal  in  their 
origin  have  lost  that  quality  and  become  part  of  the  realty  Gen- 
erally, the  connection  is  appreciable  by  the  senses;  so  that  what 
belongs  to  the  land  and  what  is  personal  may  be  determined  by 
inspection  alone.  Cases  of  constructive  annexation  are  few,  and 
rest  upon  peculiar  and  obvious  reasons  of  their  own.  Thus  keys, 
which  must  be  movable  to  answer  their  end,  and  which  are  a  neces- 
sary part  of  the  fixed  locks  to  which  they  are  adapted;  sashes  and 
window  frames,  and  the  old  example  of  an  upper  mill-stone,  removed 
to  be  picked,  illustrate  the  same  principle.  Deer  in  a  park,  rabbits 
in  a  warren,  doves  in  a  dove  cot,  and  fish  in  a  pond,  depend  on  a 
different  reason.  In  these  conditions  they  are  reckoned  not  prop- 
erty at  all;  but  any  of  them,  caught  and  secured,  becomes  at  once 
personal  property.  Williams  on  Personal  Property,  19.  In  respect 
to  all  cases  of  constructive  annexation,  there  exists  both  adaptation 
to  the  enjoyment  of  the  land  and  localization  in  use  as  obvious  ele- 
ments of  distinction  from  mere  chattels  personal.  Even  in  respect 
to  cases  of  actual  annexation  to  the  realty  and  consequent  change 
of  character  from  chattel  personal  to  realty,  it  is  held  that  there 
ought  to  be  the  concurrence  of  actual  annexation,  of  applicability  to 
the  use  to  which  that  part  of  the  realty  is  appropriated  with  which 
it  is  connected,  and  lastly  an  intention  on  the  part  of  the  party 
making  the  annexation  to  make  a  permanent  accession  to  the  free- 
hold. Potter  v.  Cromwell,  40  N.  Y.  287;  Voorhies  v.  McGinnis,  48  id. 
278.  Looking  now  at  the  rolling-stock  of  a  railroad,  it  is  originally 
personal  in  its  character,  it  is  subservient  to  a  mere  personal  trade, 
the  transportation  of  freight  and  passengers.  The  tracks  exist  for 
the  use  of  the  cars  rather  than  the  cars  for  the  use  of  the  track. 
There  is  no  annexation,  no  immobility  from  weight,  there  is  no 
localization  in  use.  The  only  element  on  which  an  argument  can  be 
based  to  support  the  character  of  realty  is  adaptation  to  use,  with 
and  upon  the  track.     Even  in  respect  to  this,  were  the  same  contri- 


252      CONSTITUENTS   AND   INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

vance  adopted  by  a  tenant  for  use  in  his  trade  upon  leased 
lands  his  right  to  remove  both  cars  and  track  would  be  beyond 
question.  It  is  perhaps  fortunate  that  this  question  was  not  finally 
adjudicated  in  the  early  days  of  railroad  enterprise,  for  then  unity 
of  ownership  in  track  and  cars  and  independence  of  roads  upon  each 
other  seemed  to  render  it  possible  to  consider  rolling-stock  part  of 
the  realty  without  introducing  great  inconvenience.  At  the  present 
time,  independent  companies  exist,  owning  no  tracks,  whose  trains 
run  through  State  after  State  on  the  railroad  track  of  other  com- 
panies. It  is  no  uncommon  sight  to  see  the  cars  of  half  a  dozen 
companies  formed  into  a  single  train  and  running  from  New  York  to 
Illinois  and  Missouri.  It  is  impossible  to  deal  with  such  property 
as  part  of  the  realty  without  introducing  anomalies  and  uncertainties 
of  the  gravest  character.  Call  cars  and  engines  part  of  the  realty; 
where  shall  they  be  taxed?  Real  estate  is  to  be  taxed  at  its  site. 
What  is  the  site  of  a  railroad  train  running  from  New  York  to  Buffalo 
in  a  day?  Shall  it  be  taxed  in  each  town  where  the  assessors  catch 
sight  of  it  rushing  by  at  thirty  miles  an  hour?  Or  if  a  judgment  be 
docketed  in  one  county  on  the  line,  will  its  lien  attach  on  each  car 
as  it  is  whirled  past?  And  how  shall  conflicting  liens  in  such  cases 
be  marshaled?  The  difficulties  which  follow  on  admitting  that  roll- 
ing-stock can  be  part  of  the  realty  are  partly  disclosed  in  Minnehaha 
Co.  v.  St.  Paul  Co.,  2  Wall.  609.  There  the  court  is  supposed  to 
have  adjudged  that  a  company  owning  a  long  line  of  railroad  and  all 
the  rolling-stock  upon  it  may  assign  particular  portions  of  rolling- 
stock  to  particular  parts  of  the  road  and  mortgage  such  parts  of  the 
road  with  their  particular  portion  of  rolling-stock;  that  whether  this 
had  been  done  was  a  question  of  intention,  and  that  in  the  case 
before  the  court  it  had  been  done.  But  upon  examining  the  case 
it  will  be  found  that  it  was  so  decided  by  the  District  Court  in  another 
suit,  the  decree  in  which  bound  the  parties  then  before  the  court, 
and  concluded  them  so  that  the  question  spoken  of  could  not  be 
adjudicated  (p.  636).  To  this  judgment  three  of  the  justices  dis- 
sent, and  in  expressing  their  views  say,  "  we  agree  that  the  rolling- 
stock  upon  this  road  covered  by  the  several  mortgages,  and  as 
respects  any  other  valid  liens  upon  the  same,  is  inseparably  con- 
nected with  the  road;  in  other  words,  is,  in  technical  language,  a 
fixture  to  the  road,  so  far  as  in  its  nature  and  use  it  can  be  called  a 
fixture.  But  it  is  a  fixture  extending  over  the  entire  track  of  the 
road.  It  is  not  a  fixture  upon  any  particular  division  or  portion,  but 
attaches  to  every  part  or  portion." 

While  I  can  see  that  views  like  these  are  accommodated  to  rail- 
roads in  the  character  of  mortgagors  in  their  relation  with  the  holders 


V.   i.]  FIXTURES:     ANNEXATION.  253 

of  their  bonds,  they  cannot  be  allowed  to  prevail  without  introduc- 
ing inextricable  confusion  and  uncertainty  in  respect  to  the  laws  of 
taxation  and  of  judgment  liens,  and  great  embarrassment  in  dealing 
in  respect  to  this  class  of  property.  It  is  vastly  better  that  changes 
of  this  sort,  if  thought  to  be  needed,  should  be  introduced  by  legis- 
lation. In  my  judgment,  the  want  of  the  element  of  localization  in 
use  is  a  controlling  and  conclusive  reason  why  the  character  of  realty 
should  not  be  given  to  rolling-stock  of  a  railroad.  For  want  of 
that  element,  rolling-stock  cannot  be  subjected  to  the  laws  regu- 
lating taxation  and  liens  on  real  property.  For  a  statement  of  all 
the  decided  cases  to  1869,  I  refer  to  Redfield  on  Railways,  vol.  2,  p. 
507,  sec.  235,  and  notes. 

Taking  it,  then,  to  be  the  law,  that  rolling-stock  of  a  railroad  does 
not  become  part  of  the  realty  so  as  to  pass  by  a  conveyance  of  the 
land  as  part  thereof,  the  next  question  is  whether  the  law  of  1833 
requires  a  mortgage  of  such  property  to  be  filed  where  no  change  of 
possession  takes  place.  That  the  case  falls  within  the  language  of 
the  law,  is  plain.  It  is  universal  in  its  requirement.  If  this  case  is 
to  be  excepted,  it  must  be  either  on  account  of  the  character  of  the 
mortgage  or  of  the  property  mortgaged,  or  on  account  of  some  pro- 
vision of  the  statute  law  taking  away  the  necessity  of  filing.  \_The 
court  finds  no  ground  for  exception  by  reason  of  character  of  mortgage  or 
property  mortgaged,  and  proceeds  as  follows :] 

Nor  does  the  statute  authority,  conferred  by  the  act  of  1850  to 
mortgage  for  certain  purposes  corporate  property  and  franchises, 
touch  the  question.  The  statute  is  silent  as  to  the  manner  in  which 
the  power  shall  be  exercised.  It  might  as  well  be  argued  that  a 
mortgage  filed  as  one  of  personal  property  should,  by  this  filing, 
operate  to  give  priority  as  one  of  land,  without  being  recorded,  as 
to  maintain  the  converse  of  the  proposition.  The  pov/er  is  given,  but 
to  be  effectually  exercised  the  method  must  be  pursued  which  is 
appropriate  to  the  kind  of  property.  What  is  real,  must  be  dealt 
with  as  real;  what  is  personal,  as  personal.  This  view  of  the  statute 
is  confirmed  by  the  subsequent  statute  of  1868  (chap.  779,  p.  1747), 
which  enacts  that  mortgages  by  railroad  companies  of  real  and  per- 
sonal property  need  not  be  filed  as  chattel  mortgages,  if  recorded  as 
real  estate  mortgages,  in  each  county  in  or  through  which  the  road 
runs.     *     *     * 

Judgment  reversed.1 

1  In  some  states  statutory  or  constitutional  provisions  have  set  aside  decisions 
holding  rolling-stock  realty.     See  Const,  of  Illinois. —  Ed. 


254      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

2.  Severance  of  a  Chattel  Which  Has  Once  Been  Annexed. 

a.   Severance  by  owner  of  land. 

(i.)  Actual. 

(a.)    With  intent  that  severance  shall  be  permanent. 

HARRIS  v.  SCOVEL. 
85  Michigan,  32.  —  1891. 

Morse,  J.  — This  is  an  action  of  trover  for  the  conversion  of  2,000 
fence  rails,  commenced  in  Justice's  Court,  and  subsequently  appealed 
to  the  Circuit  Court  of  Wayne  county.  Plaintiff  recovered  judgment 
in  both  courts. 

The  plaintiff,  in  the  partition  of  reai  estate,  February  6,  1886, 
became  the  owner  of  a  piece  of  land  175  feet  wide  and  1,601  feet  in 
length.  There  was  then  a  fence  on  the  land  which,  before  the  par- 
tition, made  a  lane.  She  sold  the  land  to  defendant  October  3,  1888. 
The  deed  of  conveyance  was  a  warranty  deed  in  the  ordinary  form. 
Having  no  use  for  a  lane  on  the  premises,  about  a  year  before  she 
sold  to  the  defendant  the  plaintiff  took  down  the  fence,  and  piled  up 
the  rails  on  the  premises,  intending,  as  she  testifies,  to  remove  them 
to  a  farm  that  she  owned  in  Dearborn.  She  had  drawn  84  posts 
upon  this  land,  and  made  some  preparation  to  build  a  board  fence 
as  a  division  fence  between  her  land  and  that  of  others,  as,  at  the 
time  partition  was  made,  it  left  the  premises  allotted  to  her  open 
and  unfenced.  She  testified,  against  objection,  that  at  the  time  she 
made  the  agreement  with  defendant  to  sell  him  the  land  she  reserved 
the  rails.  There  was  no  reservation  in  the  deed.  The  rails,  prior 
to  being  piled  up  by  plaintiff,  had  been  in  this  lane  fence  nearly  fifty 
years.  Plaintiff  had  no  use  for  the  lane  after  the  partition.  Defend- 
ant testified  that  plaintiff,  when  making  the  agreement  to  sell,  wanted 
to  reserve  the  rails,  but  he  would  not  consent  to  it,  and  bought  the 
place  as  it  was. 

The  circuit  judge  submitted  the  question  to  the  jury,  instructing 
them  that  the  rails  piled  upon  the  premises,  and  not  being  in  any 
existing  fence  at  the  time  of  the  sale,  were  personal  property,  and  that, 
unless  they  found  that  the  plaintiff  sold  the  rails  to  the  defendant,  — 
agreed  that  they  should  go  with  the  land,  —  she  was  entitled  to 
re<  over.  The  court  was  right,  and  the  judgment  must  be  affirmed. 
Kails  piled  up,  under  the  circumstances  that  these  were,  are  personal 
property.  There  can  be  no  claim  that  fence  rails  are  of  necessity 
part  of  the   realty  unless  they  are  in  a  fence,  and  even  in  such  case, 


V.  2.]  FIXTURES:     SEVERANCE.  255 

they  may  remain  as  personalty,  if  such  be  the  agreement  between 
the  parties  interested  at  the  time  the  fence  is  built.  Curtis  v. 
Leasia,  78  Mich.  480. 

The  contention  is  made  that  plaintiff  is  estopped  from  claiming 
these  rails,  because,  following  the  description  by  metes  and  bounds 
of  the  premises  in  her  warranty  deed  to  defendant,  the  deed  con- 
tinues as  follows: 

"  Being  the  same  premises  which  were  assigned  by  said  commis- 
sioners in  partition  to  Mary  E.  Harris,  .  .  .  together  with  all 
and  singular  the  hereditaments  and  appurtenances  thereunto  belong- 
ing," etc. 

It  is  argued  that  she  thereby  conveyed  these  rails,  because  they 
were  a  part  of  the  realty  when  she  received  it  in  partition.  We  do 
not  consider  this  statement  in  the  deed  to  be,  or  to  have  been 
intended  to  be,  a  covenant  that  the  premises  were  to  be  conveyed  to 
defendant  in  exactly  the  same  condition  as  to  fences,  timber,  and 
growing  crops  as  they  were  when  she  received  them.  Such  a  con- 
struction would  be  absurd.  If  the  rails  must  pass  under  the  war- 
ranty, because  of  this  clause,  then  she  must  also  account,  under 
such  warranty,  to  the  defendant  for  all  the  timber  standing  or  crops 
growing  upon  the  premises  when  she  received  them  by  partition, 
which  she  may  have  removed  since  that  time  and  before  the  sale  to 
defendant.     The  deed  cannot,  in  reason,  be  so  construed. 

Affirmed,  with  costs. 


(b.)    Without  intent  that  severance  shall  be  permanent. 

GOODRICH  v.  JONES. 
2  Hill  (N.  Y.),  142.  —  1841. 

Trover  by  Jones  against  Goodrich  for  taking  and  converting 
manure  and  boards,  alleged  to  be  the  property  of  Jones. 

Jones  contracted  to  sell  a  farm  to  Goodrich  and  later  conveyed  a 
part  thereof  to  Goodrich,  and  the  residue,  with  consent  of  Goodrich, 
to  one  Vose.  When  the  deeds  were  executed  the  boards  were  on 
Vose's  part.  They  had  all  been  in  a  fence  on  that  part  and  some 
still  remained  so;  though  a  good  many  of  them  were  displaced,  some 
let  down  and  and  some  blown  down.  After  the  transfer  Goodrich 
converted  to  his  own  use  both  boards  and  manure. 

Judgment  by  the  justice  for  Goodrich.  On  certiorari  by  Jones  the 
Common  Pleas  reversed  this  judgment  on  the  ground  that  the  man- 
ure was  personal  property  and  did  not  pass  to  the  vendee.  Goodrich 
brings  error  to  this  court. 


256      CONSTITUExNTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

By  the  court,  Cowen,  J.  —  The  Common  Pleas  appear  to  have  taken 
the  same  view  of  Goodrich's  or  rather  Vose's  title  to  the  boards,  as 
did  the  justice.  There  cannot  be  a  doubt  that  they  were  right. 
Fences  are  a  part  of  the  freehold;  and  that  the  materials  of  which 
they  were  composed  are  accidentally  or  temporarily  detached,  with- 
out any  intent  in  the  owner  to  divert  them  from  their  use  as  a  part 
of  the  fence,  works  no  change  in  their  nature.  Vid.  Walker  v.  Sher- 
man, 20  Wend.  639,  640. 

With  regard  to  the  manure,  we  have  held  that  even  as  between 
landlord  and  tenant,  it  belongs  to  the  former;  in  other  words,  it 
belongs  to  the  farm  whereon  it  is  made.  This  is  in  respect  to  the 
benefit  of  the  farm,  and  the  common  course  of  husbandry.  The 
manure  makes  a  part  of  the  freehold.  Middlebrook  v.  Corwin,  15 
Wend.  169.  Nay,  though  it  be  laid  up  in  heaps  in  the  farmyard. 
Lassell  v.  Reed,  6  Greenl.  222;  Daniels  v.  Pond,  21  Pick.  367,  The 
rule  has  always  been  still  stronger  in  favor  of  the  vendee  as  against 
vendor,  and  heir  as  against  executor.  In  Kittredge  v.  Woods,  3  N. 
H.  Rep.  503,  it  was  accordingly  decided,  that  manure  lying  in  a 
barn-yard  passes  to  the  vendee.  Vid.  also  Daniels  v.  Pond,  before 
cited. 

The  case  of  Kittredge  v.  Woods,  was  very  well  considered;  and  the 
right  of  the  vendee  to  the  manure,  whether  in  heaps  or  scattered  in 
the  barn-yard,  vindicated  on  principle  and  authority  I  think  quite 
satisfactorily. 

There  are  several  English  dicta  which  conflict  with  our  views  of 
the  right  to  manure,  as  between  landlord  and  tenant,  and  that  of 
the  court  in  New  Hampshire,  as  between  vendor  and  vendee.  And 
Vid.  2  Kent's  Com.  346,  note  c,  4th  ed.,  and  Carver  v.  Pierce,  Sty. 
66.  But  they  may  all  be  considered  as  repudiated  by  Middlebrook  v. 
Corwin,  Vide,  the  introductory  remarks  of  Mr.  Justice  Nelson,  15 
Wend.  170. 

The  judgment  of  the  Common  Pleas  must  be  reversed;  and  that 
of  the  justice  affirmed. 

Judgment  reversed. 


VOORHIS  v.  FREEMAN. 

2  Waits  and  SERGEANT  (Pa.),  116.  — 1841. 

{Reported  herein  at  p.  224.] 


V.  2.]  FIXTURES:    SEVERANCE.  257 

(2.)  Constructive  Severance  ky  Sale,  Exception,  Mortgage  or 
Agreement. 

(a.)   Sale  or  exception  :  by  parol  or  deed, 

LEONARD  v.  CLOUGH. 

133  New  York,  292.  —  1892. 

Earl,  Ch.  J. — The  material  facts  in  this  case  are  as  follows: 
Prior  to  March  29,  1884,  Adaline  Clough  owned  a  lot  of  land  in  the 
city  of  Auburn,  upon  which  there  was  a  small  barn,  and  on  that  day 
she  conveyed  the  lot  by  an  ordinary  warranty  deed  to  the  defendant, 
Robie  Clough,  who  owned  the  adjoining  lot  on  the  northerly  side  of 
the  lot  thus  conveyed.  On  the  1st  day  of  April,  1884,  Robie  Clough, 
by  an  ordinary  warranty  deed,  conveyed  the  same  lot  to  her  daughter, 
Mary  Gilbert,  with  the  exception  of  a  strip  six  feet  by  twelve  rods 
reserved  from  the  northerly  side  of  the  lot.  About  one-third  of  the 
barn  was  upon  the  strip  thus  reserved,  and  thus  the  dividing  line 
between  the  two  lots  after  that  conveyance  ran  through  the  barn, 
leaving  about  one-third  thereof  upon  the  land  of  Robie  Clough  and 
two-thirds  thereof  upon  the  land  of  Mary  Gilbert.  At  the  time  of 
the  execution  of  the  deed  by  Robie  Clough  to  Mrs.  Gilbert  and 
immediately  thereafter  she  said  to  Mrs.  Clough  and  her  husband: 
"  Now  pa,  and  ma,  the  barn  is  yours;  there  can  nobody  interfere  with 
you,"  and  Robie  Clough  and  her  husband  have  ever  since  been  in 
the  occupancy  of  the  barn.  On  the  28th  day  of  October,  1886,  Mrs. 
Gilbert  by  an  ordinary  warranty  deed,  conveyed  the  lot  to  Julia  M. 
Sherwood,  and  at  the  time  of  that  conveyance  Mrs.  Sherwood  was 
informed  that  the  barn  belonged  to  Mrs.  Clough  and  there  was  a 
parol  reservation  of  the  same.  On  the  1st  day  of  November,  1886, 
Mrs.  Sherwood,  by  an  ordinary  warranty  deed,  conveyed  the  lot  to 
Mrs.  Eunice  Nellis,  and  at  the  time  of  that  conveyance  Mrs.  Nellis 
was  informed  by  parol  that  Mrs.  Clough  owned  the  barn  and  that  it 
did  not  pass.  On  the  8th  day  of  November,  1888,  Mrs.  Nellis,  by 
an  ordinary  warranty  deed,  conveyed  the  lot  to  the  plaintiff,  and  at 
the  time  of  that  conveyance  he  was  informed  by  parol  that  the  barn 
belonged  to  Mrs.  Clough  and  did  not  pass  with  the  conveyance 
After  he  had  purchased  the  lot,  Mrs.  Clough  informed  him  that  she 
claimed  the  barn  and  intended  to  move  it  from  the  lot,  and  he  told 
her  not  to  move  it.  After  that  the  defendants  moved  the  barn 
from  the  lot,  and  then  the  plaintiff  brought  this  action  to  recover 
for  the  value  of  so  much  of  the  barn  as  stood  upon  his  lot  and  claimed 
to  recover  treble  damages. 

LAW  OF   PROP.    IN  LAND —  17 


258      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.  CH.  II. 

The  barn  was  a  wooden  structure,  worth  less  than  $200.,  and  rested 
upon  four  large  stones  at  the  corners  and  smaller  stones  at  other 
places. 

Upon  the  trial  the  plaintiff  objected  to  the  parol  evidence  given 
by  the  defendants  to  show  the  parol  reservation  of  the  barn  at  the 
times  of  the  several  conveyances  of  the  lot.  But  the  court  over- 
ruled the  objections  and  received  the  evidence.  The  court  below 
held  that  the  evidence  was  competent;  that  the  barn  after  the  con- 
veyance by  Mrs.  Clough  to  her  daughter  became  and  remained  per- 
sonal property,  and  that  she  had  a  lawful  right  to  remove  the  same, 
and  judgment  was  entered  upon  the  verdict  in  favor  of  the 
defendants. 

We  think  a  few  plain  principles  of  law  require  a  reversal  of  this 
judgment.  This  barn  at  the  time  of  the  conveyance  by  Mrs.  Clough 
to  Mrs.  Gilbert  was  a  part  of  the  realty,  and  there  could  be  no  parol 
reservation  of  it.  The  grantor  could  no  more  reserve  the  barn  by 
parol  than  she  could  reserve  trees  growing  upon  the  land,  or  a  ledge 
of  rocks  or  a  mine  or  a  portion  of  the  soil.  As  between  the  grantor 
and  grantee  it  is  very  clear  that  the  grantor  would  not  have  been 
permitted  to  show  that  the  barn  was  reserved  by  parol,  as  that  evi- 
dence would  have  contradicted  the  deed  which  was  absolute  in  form. 
If  the  grantor  had  removed  the  barn  the  grantee  could  have  sued  her 
for  trespass  and  she  could  not  have  defended  by  showing  a  parol 
reservation  of  the  barn.  If  it  had  been  claimed  in  such  a  suit  that 
it  was  part  of  an  oral  agreement  or  reservation  that  the  barn  should 
not  pass,  that  fact  could  not  have  been  shown,  as  it  would  have  con- 
tradicted the  deed.  The  deed  contained  covenants  of  warranty 
which  covered  the  entire  title  to  the  real  estate,  and  the  grantor 
could  not  in  such  a  suit  have  shown  by  parol  that  any  part  of  the  real 
estate  was  not  covered  by  the  covenants.  So,  too,  if  it  be  claimed 
that  what  was  said  by  Mrs.  Gilbert  to  Mrs.  Clough  immediately  after 
the  deed  was  delivered  constituted  a  parol  gift  of  the  barn  to  her 
father  and  mother,  the  gift  could  not  be  operative  because  the  barn 
at  that  time  was  a  part  of  the  realty.  It  had  never  been  severed 
from  the  realty  and  had  never  been  by  any  acts  of  the  parties  or  the 
owners  made  personal  property,  and  the  parol  gift  of  a  portion  of 
the  real  estate  could  not  be  upheld  without  violating  the  statute  of 
frauds.  The  one-third  of  the  barn  which  rested  upon  the  lot  owned 
by  Mrs.  Clough  was  and  remained  realty,  and  it  is  impossible  to 
pen  eive  how  by  mere  words  the  other  two-thirds  could  be  converted 
into  personalty.  ( )an  trees  and  other  portions  of  real  estate  be  con- 
verted  into   personalty  by  a  mere  parol  gift  and  without  severance? 

It    is   clear   that  after  the   conveyance  from   Mrs.  Clough  to  Mrs. 


V.  a.]  FIXTURES:    SEVERANCE.  259 

Gilbert  the  barn  remained  a  part  of  the  realty,  and  was  covered  by 
the  deed  and  the  covenants  of  warranty  therein  contained;  and  so 
the  barn  passed  to  each  successive  purchaser,  and  no  grantor  could 
dispute  that  the  grantee  took  title  to  the  barn;  and  thus  the  title 
to  so  much  of  the  barn  as  stood  upon  this  lot  was  finally  vested  in 
the  plaintiff.  All  the  deeds  contained  covenants  of  warranty.  Those 
covenants  run  with  the  land,  and  each  successive  grantee  could  have 
the  benefit  of  all  the  prior  covenants.  The  plaintiff  is  in  privity  of 
estate  with  Mrs.  Clough,  and  his  rights  are  the  same  as  they  would 
have  been  if  he  had  been  her  immediate  grantee.  He  holds  under 
her  deed,  and  in  an  action  by  him  for  a  breach  of  her  covenants  she 
could  not  dispute  that  the  barn  was  a  part  of  the  realty.  And  in 
this  action  against  her  for  removing  the  barn  she  cannot  dispute  that 
it  passed  under  her  deed.  His  rights  are  the  same  as  Mrs.  Gilbert's 
would  have  been  if  she  had  disputed  Mrs.  Clough's  right  to  the  barn, 
and,  before  she  had  conveyed,  had  sued  her  for  removing  it. 

A  careful  scrutiny  of  the  cases  cited  on  behalf  of  the  defendants 
shows  that  there  is  absolutely  no  authority  for  their  contention  in  a 
case  like  this.  If  at  the  time  of  the  conveyance  of  Mrs.  Clough  the 
barn  had  been  personal  property  in  the  ownership  of  some  other 
person,  and  the  grantees  had  been  notified  of  that  fact,  the  title  to 
it  would  not  have  passed  by  the  successive  conveyances.  If  this 
barn  had  been  placed  upon  the  lot  by  some  third  person  with  the 
consent  of  the  owner  and  with  the  understanding  that  such  third 
person  could  at  any  time  remove  it,  it  would  have  remained  personal 
property  and  would  not  have  passed  to  a  purchaser  under  any  form 
of  conveyance  providing  such  purchaser  had  notice  of  the  fact.  But 
where  the  land  and  the  buildings  thereon  belong  to  the  same  person, 
then  the  buildings  are  a  part  of  the  real  estate  and  pass  with  it  upon 
any  conveyance  thereof.  In  such  a  case  the  grantor  can  retain 
title  to  the  buildings  only  by  some  reservation  in  the  deed  or  by 
some  agreement  in  writing  which  will  answer  the  requirements  of 
the  statute  of  frauds.  Any  other  rule  would  be  exceedingly 
dangerous,  and  would  enable  a  grantor,  in  derogation  of  his  grant, 
upon  oral  evidence,  to  reserve  buildings  and  trees  and  other  portions 
of  his  real  estate,  and  thus,  perhaps,  defeat  the  main  purpose  of 
the  grant.  For  these  views  the  case  of  Noble  v.  Boszvorth,  19  Picker- 
ing, 314,  is  a  very  precise  authority. 

We  are,  therefore,  of  opinion  that  the  judgment  should  be  reversed 
and  a  new  trial  granted,  costs  to  abide  event. 

Judgment  reversed. 


260      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CM.  II. 

TYSON  v.  POST. 

108  New  York,  217.  —  1S8S. 

Andrews,  J. —  The  question  whether  the  defendant  Post  acquired 
title  to  the  plant  and  machinery  of  the  marine  railways  embraced  in 
the  plaintiff's  mortgage,  as  security  for  the  $6,200  paid  by  him  to 
the  plaintiffs  at  the  request  of  Carroll,  to  enable  the  latter  to  com- 
plete the  first  payment  on  the  contract  with  the  plaintiffs  for  the 
purchase  of  the  land,  does  not  depend  upon  the  character  of  the 
property,  whether  real  or  personal,  when  placed  upon  the  mortgaged 
premises.  There  can  be  little  doubt,  however,  that  the  machinery, 
shafting,  rollers  and  other  articles  became,  as  between  vendor  and 
vendee,  and  mortgagor  and  mortgagee,  fixtures  and  a  part  of  the 
realty.  McRae  v.  Central  Nat.  Bank,  66  N.  Y.  4S9.  But  as  by 
agreement,  for  the  purpose  of  protecting  the  right  of  vendors  of 
personalty,  or  of  creditors,  chattels  may  retain  their  character  as 
chattels,  notwithstanding  their  annexation  to  the  land  in  such  away 
as  in  the  absence  of  an  agreement  would  constitute  them  fixtures, 
Ford  v.  Cobb,  20  N.  Y.  344;  Sisson  v.  HibbarJ,  75  Id  542,  so  also,  it 
would  seem  to  follow,  that  by  convention,  the  owner  of  land  may 
reimpress  the  character  of  personalty  on  chattels,  which,  by  annexa- 
tion to  the  land,  have  become  fixtures  according  to  the  ordinary  rule 
of  law,  provided  only  that  they  have  not  been  so  incorporated  as  to 
lose  their  identity  and  the  reconversion  does  not  interfere  with  the 
rights  of  creditors  or  third  persons.  The  plant  and  machinery  in 
question  were  personal  property  when  placed  on  the  land,  and  the 
only  issue  presented  is,  did  the  plaintiffs  agree  with  Post  that  he 
might  take  the  title  to  the  plant  and  machinery  for  his  security,  free 
of  the  mortgage,  and  remove  them  at  any  time  from  the  mortgaged 
premises,  thereby  reimpressing  the  property  with  the  character  of 
personalty.  In  determining  this  question  is  does  not  seem  to  us  to 
be  very  material  to  inquire  whether  the  deed  from  the  plaintiffs  to 
Cooney  (the  nominee  of  Carroll),  and  the  mortgage  back  embraced, 
or  was  intended  to  embrace,  the  plant  and  machinery.  Post  was 
not  a  party  to  the  instrument  and  is  not  concluded  by  them.  The 
rights  of  Post  depend  wholly  upon  this  agreement  with  the  plaintiff, 
and  if  they  received  his  money  upon  the  agreement  that  he  should 
have  the  plant  and  machinery,  with  the  right  to  remove  them  with- 
out restriction  as  to  time,  the  agreement  was  valid  although  by  parol, 
and  even  if  it  contradicts  the  legal  import  of  the  mortgage;  it  being 
an  agreement  between  different  parties,  it  is  not  within  the  rule 
which  forbids  parol  evideni  1  to  <  ontradict  .1  written  instrument.  The 
only  point  of  disagreement  between  the  parties  relates  to  a  restriction 


V.  2.]  FIXTURES:    SEVERANCE.  261 

alleged  to  have  been  placed  on  the  time  within  which  Post  should 
exercise  the  right  of  removal.  The  plaintiffs  concede  that  the  right 
of  removal  was  given  to  Post,  but  they  allege  that  it  was  subject  to 
the  limitation  that  the  right  should  be  exercised  before  any  proceed- 
ings were  taken  to  foreclose  the  mortgage.  The  defendant,  on  the 
other  hand,  claims  that  the  right  was  unrestricted  and  absolute.  The 
paper  executed  by  the  plaintiff  on  the  closing  of  the  transaction  con- 
tains the  restriction  claimed  by  the  plaintiffs.  But  we  think  the  evi- 
dence sustains  the  contention  of  the  defendant,  that  the  paper  was 
not  delivered  to  or  accepted  by  him,  and  that  he  had  no  knowledge 
of  its  contents.  The  question  of  fact,  therefore,  depends  upon  the 
other  evidence  bearing  upon  the  actual  agreement.  It  would  not  be 
useful  to  state  the  evidence  in  detail.  It  is  sufficient  to  say  that 
after  a  careful  examination  of  the  testimony,  we  have  reached  the 
conclusion  that  the  claim  of  the  defendant  is  most  consistent  with 
the  conceded  facts  and  is  supported  by  a  preponderance  of  evidence. 
The  order  of  the  General  Term  should,  therefore,  be  affirmed,  and 
judgment  absolute  directed  in  accordance  with  the  stipulation. 

Judgments  accordingly. 


(b.)  Mortgage:  real  or  chattel. 

TRULL  v.  FULLER. 

28  Maine,  545.  —  1848. 


Trover  for  a  shingle  machine  and  clap-board  machine. 

In  April,  1840,  Jacob  Chamberlain  gave  plaintiff  a  mortgage  on 
the  machines  in  question,  then  fixtures  upon  his  land.  This  mortgage 
was  not  recorded  as  a  real  estate  mortgage,  but  was  regarded  as  a 
mortgage  of  personalty.  In  Oct.,  1840,  one  Ingalls  obtained  a  judg- 
ment against  Chamberlain  on  which  a  levy  was  made  on  the  real 
estate,  including  said  machines  as  a  part  thereof.  Defendant  claims 
under  the  execution  and  judgment. 

Tennev,  J.  —  It  is  competent  for  the  owner  of  real  estate  to  sell 
upon  good  and  sufficient  consideration,  fixtures  thereon,  which  would 
pass  under  a  conveyance  of  the  realty,  if  they  were  not  excepted. 
The  purchaser  would  be  entitled  to  sever  the  same  within  the  time 
stipulated,  or  if  no  time  was  agreed  upon,  within  a  period,  which 
under  all  the  circumstances,  and  according  to  the  character  of  the 
subject  of  the  purchase,  would  be  deemed  reasonable.  But  without 
a  severance,  or  some  indication,  actual  or  constructive,  that  they 


262      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

had  been  sold,  they  would,  as  between  the  purchaser  and  attaching 
creditors,  or  subsequent  purchaser  of  the  real  estate  to  which  they 
attached,  be  considered  as    still  a  part  of  the  freehold. 

A  conveyance  of  real  estate  to  be  valid,  excepting  against  the 
grantor,  his  heirs,  devisees  and  those  having  actual  notice,  must  be 
by  deed  acknowledged  and  recorded  in  the  office  of  the  register  of 
deeds  in  the  county  where  the  estate  is  situated.  Rev.  St.  c.  91, 
sees.  1,  24  and  26.  These  provisions  are  substantially  the  same  as 
those  of  the  statutes  of  1821,  c.  136,  sec.  1. 

It  follows,  that  to  convey  that  which  constitutes  a  part  of  the  real 
estate,  but  which  by  a  severance  may  become  a  chattel,  so  as  to  be 
effectual  against  those  who  are  not  excepted  in  the  statute,  the  same 
formalities  are  required,  unless  a  severance  takes  place.  Against 
those  who  can  legally  insist  upon  these  formalities,  the  interest 
attempted  to  be  sold  does  not  become  personal  property  till  there  is 
a  severance  in  fact,  or  until  all  that  is  required  to  convey  real  estate 
is  perfected;  before  its  former  character  can  be  changed  by  a  sale, 
the  sale  must  be  such,  as  is  necessary  to  convey  property  of  that 
character;  by  a  performance  of  a  part  only  of  what  is  required  to 
pass  a  title  to  real  estate,  it  does  not  cease  to  be  what  it  was,  prior 
to  the  first  steps  taken  towards  a  conveyance. 

This  construction  is  not  only  necessarily  inferred  from  the  provisions 
of  the  statute,  but  upon  a  different  construction,  the  registration  law 
would  be  but  an  imperfect  security  to  the  grantees  of  real  estate.  It  is 
often  the  case,  that  the  most  valuable  portion  of  the  estate  referred 
to,  in  a  deed  of  conveyance,  are  the  buildings  and  fixtures  thereon; 
and  it  is  understood,  that  the  title  which  a  grantee  obtains  by  a  deed 
of  land,  is  whatever  the  registry  shows  to  be  that  of  the  grantor, 
unless  he  has  actual  notice  of  a  different  state  of  the  title.  This 
embraces  not  only  the  soil,  but  whatever  is  attached  thereto,  making 
a  part  of  the  freehold.  If  the  owner  could,  without  a  severance  and 
without  the  forms  required,  for  the  transfer  of  real  estate,  transmit 
machines  in  a  mill  or  factory,  as  personal  chattels,  when  they  are  so 
situated  as  to  make  a  part  of  the  freehold,  while  held  by  him,  he 
could  in  the  same  manner  convey  the  mill  or  factory  or  any  buildings 
standing  upon  the  land  described  in  the  deed  by  which  he  should 
subsequently  convey  the  land  to  another,  having  no  notice  of  the 
previous  sales  of  the  buildings. 

The  registry  in  the  town  clerk's  office  of  mortgages  of  personal 
property,  is  intended  to  be  of  that  property  which  was  personal 
before  it  was  mortgaged;  it  is  unnecessary  that  the  instrument 
which  is  the  evidence  of  an  absolute  sale  of  chattels  should  be 
recorded  at  all;  and  it  could  not  have  been  designed  that  a  mort- 


V.  2.]  FIXTURES  :     SEVERANCE.  263 

gage  of  that,  which  was  a  part  of  the  realty,  before  the  mortgage 
was  executed,  should  be  recorded  in  the  office  of  the  town  clerk, 
instead  of  the  registry  of  deeds;  nothing  short  of  the  latter  could 
be  constructive  notice  to  attaching  creditors  or  subsequent 
purchasers. 

The  machines  which  are  in  controversy,  in  this  suit,  have  been 
decided  to  be  a  part  of  the  real  estate  in  a  former  hearing  of  this 
case.  There  is  no  evidence  that  they  were  severed  from  the  free- 
hold, before  the  levy,  under  which  the  defendant  claims,  or  that  he 
was  notified  of  the  mortgage  to  the  plaintiff.  The  mortgage  was 
not  recorded  in  the  office  of  the  register  of  deeds  of  the  county 
where  the  land  was  situated,  but  it  was  recorded  in  the  town  clerk's 
office,  in  the  town  where  the  mortgagor  resided,  before  the  levy. 
In  every  respect,  the  plaintiff  treated  the  machines  as  personal  chat- 
tels, and  not  as  partaking  of  the  character  of  a  part  of  the  real  estate 
on  which  they  were  placed.  The  steps  taken  were  insufficient  to 
give  him  title  as  against  the  creditor,  who  made  the  levy  upon  the 
real  estate. 

This  view  renders  it  unnecessary  to  consider  whether  there  was  a 
valid  attachment  upon  the  writ  in  the  action,  which  resulted  in  the 
judgment  on  which  the  levy  was  made. 

Plaintiff  nonsuit. 


(3.)  When  Landowner  May  Not  Sever  Fixtures. 
WITMER'S  APPEAL. 

45  Pennsylvania  State,  455.  —  1863. 

Bill  to  restrain  defendants  from  selling  certain  machinery  severed 
by  one  Henry  Thoma  from  his  real  estate.  It  is  alleged  that  the 
articles  were  so  attached  to  the  realty  as  to  be  a  part  thereof  and 
subject  to  certain  liens  thereon,  and  that  Thoma  severed  the  same 
therefrom  in  collusion  with  Witmer  and  other  execution  creditors  to 
enable  them  to  levy  thereon  as  chattels,  the  prior  liens  being  more 
than  the  entire  premises  were  worth. 

The  decree  below  required  the  defendants  to  replace  the  machinery 
and  enjoined  them  from  selling  the  same.  From  this  decree  Witmer 
appeals. 

Wooward,  J.  —  In  affirming  this  decree,  we  wish  to  be  understood 
as  neither  affirming  nor  denying  the  broad  proposition  that  equity 
will,  at  the  suit  of  a  mere  judgment-creditor,  interpose  to  restrain 
such  acts  of  a  judgment-debtor,  in  possession  as  owner  of  real  estate, 
as  would  constitute  waste  at  common  law.     A  judgment-creditor  is 


264      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   ClI.  II. 

not  within  the  protection  of  our  Act  of  Assembly  of  29th  March, 
1832,  Purdon,  1008,  until  he  has  brought  his  debtor's  land  to  liability 
to  sale  on  a  venditioni  exponas;  but  whether,  independently  of  the 
statute,  he  is  entitled  to  protection  in  equity  before  levy  and  con- 
demnation, is  the  main  question  decided  by  the  learned  judge  below, 
and  the  precise  question  which  we  do  not  mean  to  decide. 

On  another  ground,  there  is  not  the  least  difficulty  in  affirming  the 
decree.  That  is  the  ground  of  fraud,  to  which,  there  can  be  no 
question,  the  equity  jurisdiction  extends.  The  case  disclosed  by  the 
bill  and  answer  is  that  of  a  plaintiff  with  judgments  to  a  large 
amount  against  a  defendant  conceded  to  be  insolvent,  and  the  real 
estate  on  which  these  judgments  are  liens  admitted  to  be  insufficient 
for  their  security.  It  consisted  of  about  forty  acres  in  Union  town- 
ship, Lebanon  county,  with  a  steam  grist  and  saw-mill  thereon,  which 
mills  contained  a  steam  engine,  boilers,  and  other  machinery  neces- 
sarily connected  and  used  together,  essential  to  the  working  of  said 
mills,  and  so  annexed,  fixed,  and  imbedded  in  the  structure  of  said 
mills  as  to  be  part  of  the  freehold.  The  defendant  admitted  that 
he  detached  the  steam  engine  and  converted  it  into  personalty,  for 
the  purpose  of  enabling  certain  of  his  creditors  to  levy  upon  it,  and 
sell  it  in  satisfaction  of  their  claims.  He  claims  to  have  done  this 
on  his  own  mere  motion,  and  without  confederacy  with  the  creditors 
for  whose  benefit  it  was  done;  but  he  admits  that  they  levied  on 
it  as  personalty,  and  thus  appropriated  to  themselves  the  benefits  of 
his  act.  if  they  did  not  help  him  to  perform  it.  They  were  subse- 
quent judgment-creditors  to  the  plaintiff  in  this  bill,  and  had  no 
legal  right  to  be  first  paid  out  of  the  debtor's  property.  If  the  real 
estate,  before  severance  of  the  engine,  was  inadequate  to  secure 
prior  lien-creditors,  it  is  manifest  the  severance,  which  sensibly 
impaired  the  value  of  the  estate,  was  a  great  wrong  done  to  them. 
The  learned  judge  pronounced  it  a  palpable  fraud  and  an  illegal  pref- 
erence of  creditors.  When  the  principle  was  pressed  upon  him, 
that  equity  will  not  ordinarily  restrain  the  sale  of  chattels,  after  they 
have  been  severed  from  the  freehold,  he  put  himself  distinctly  on 
the  ground  that  the  acts  of  Thoma  were  a  fraud  in  law,  "  intended 
and  calculated  to  give  a  later  judgment-creditor  an  advantage  over 
an  earlier  one,  and  that  all  the  parties  defendants  were  participants 
in  the  fraud,  and  cannot  take  advantage  of  their  own  wrong." 

This  was  the  true  ground  of  the  decree,  and  it  is  upon  this  ground 
\'    affirm  it. 

It  is  due,  however,  to  the  very  able  argument  that  has  been  sub- 
mitted on  the  part  of  the  plaintiff  in  error,  that  we  should  notice  its 
main  positions. 


V.  2.]  FIXTURES:     SEVERANCE.  265 

It  is  maintained,  in  the  first  place,  that  it  is  the  right  of  an  owner 
of  realty,  though  insolvent,  to  disannex  fixtures  and  to  convert  them 
into  personalty,  with  the  view  of  paying  the  debt  of  a  bona  fide 
creditor. 

The  abstract  right  to  sever  fixtures  is,  unquestionably,  inherent 
in  the  full  dominion  over  land  which  ownership  confers,  and  though 
an  insolvent  owner  may  not  assign  his  property  in  trust,  so  as  to 
create  a  preference  among  his  creditors,  yet  he  may,  by  encum- 
brances confessed  or  by  absolute  and  direct  conveyances,  prefer  one 
creditor  to  another.  Worman  v.  Wolf 'she rger's  Executors,  7  Harris, 
61;  Breading  v.  Boggs,  8  Id.  37;  Covanhoven  v.  Hart,  9  Id.  495; 
Uhlerv.  Maul/air,  11  Id.  381;  Siegelv.  Chidsey,  4  Casey,  279;  York 
County  Bank  v.  Carter,  2  Wright,  446. 

But  after  the  liens  have  attached,  may  he  commit  waste  for  the 
purpose  of  preferring  creditors?  This  is  the  real  question  here.  The 
wrong  complained  of  consisted,  not  so  much  in  converting  the 
fixtures  to  the  use  of  subsequent  creditors,  as  in  the  damage  done 
to  the  freehold,  which  was  the  only  security  of  the  prior  creditors. 
When  their  liens  attached,  the  engine  formed  part  of  the  freehold, 
and  was  bound  by  them.  Although  a  judgment-creditor  has  no 
estate  in  the  lands  of  his  debtor,  it  cannot  be  said  that  he  has  not 
an  incerest  which  may  be  defended.  He  may  seize  them  in  execu- 
tion, and  then  our  statute  entitles  him  to  estrepement  to  stay  waste, 
and  on  conversion  of  the  land  into  money,  he  has  a  right,  secured 
by  another  statute,  to  take  the  money  in  preference  to  the  owner  or 
encumbrancers,  however  meritorious,  who  are  subsequent  to  himself. 
In  Gray  v.  Holdship,  17  S.  &  R.  415,  it  was  held  that  a  mechanic's 
lien  against  a  brewery  in  which  a  boiler  had  been  distrained  for  rent, 
and  severed,  would  hold  the  boiler,  as  against  a  purchaser  of  it  as  a 
chattel.  In  Voorhees  v.  Freeman,  2  W.  &  S.  119,  and  Pyle  v.  Pennock, 
Id.  390,  the  detached  rolls  of  a  rolling-mill  were  held  to  be  part 
of  the  freehold,  and  bound  by  the  lien  of  a  mortgage;  and  in  Hoskin 
v.  Wood7oard,  ante,  42,  it  was  held  that  a  mortgage  of  a  machine-shop 
included  a  lathe  therein  erected,  and  that  a  sale  and  removal  of  the 
lathe  was  such  a  violation  of  the  rights  of  the  mortgagee,  that  he 
might  follow  and  recapture  it  from  the  purchaser.  "  He  may  even 
treat  it  as  personalty  as  against  the  wrongdoer,  for  the  wrongful  act 
cannot  be  alleged  by  the  wrongdoer  as  a  measure  of  shelter  for  him- 
self," said  the  chief  justice,  in  delivering  the  opinion  of  the  court. 

True,  these  were  cases  of  mortgage,  but  in  respect  to  an  interest 
in  the  land  of  the  debtor,  what  is  the  difference  in  Pennsylvania 
betwixt  a  mortgagee  and  a  judgment-creditor? 

The  mortgagee  has  no  estate  in  the  land,  any  more  than  the  judg- 


266      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CII.  II. 

ment-creditor.  Both  have  liens  upon  it,  and  no  more  than  liens. 
This  was  expressly  asserted  hi  A  say  v.  Hoover,  5  Barr.  35,  and  has 
been  substantially,  if  not  expressly,  affirmed  in  many  cases.  Rickert 
v.  Madeira,  1  Rawle,  228;  Edmonson  v.  Nichols,  ro  Harris,  79; 
Wilson  v.  Shoenberger  s  Executors,  7  Casey,  299. 

As  to  estate  and  interest,  then,  no  substantial  difference  exists 
between  these  two  classes  of  creditors;  diversities  that  do  exist,  have 
reference  to  the  extent  and  duration  of  the  liens  and  the  remedies 
for  enforcing  them.  If  a  mortgagee  have  an  interest  in  the  mort- 
gaged premises,  which  may  be  defrauded  by  a  severance  and  sale  of 
a  fixture,  so,  we  may  conclude,  has  a  judgment-creditor.  The 
fraudulent  character  of  the  severance  must  be  determined  by  the 
circumstances  of  each  case.  So  long  as  the  debtor  uses  his  estate 
for  its  ordinary  purposes,  according  to  its  nature,  he  cannot  be 
impeached  for  fraudulent  waste.  As  was  said  in  Hoskin  v.  Wood- 
ward^ he  may  sell,  in  the  usual  way,  the  "  lumber,  firewood,  coal, 
ore,  fruit,  or  grain,"  produced  by  his  land,  without  violating  the 
rights  of  lien-creditors.  But  as  to  the  machinery,  which  is  a  con- 
stituent part  of  a  mill  or  manufactory,  to  the  purposes  of  which  the 
building  has  been  adapted,  and  without  which  it  would  cease  to  be 
such  a  mill  or  manufactory,  the  rule  is  different.  To  dismantle 
such  an  establishment  on  the  eve  of  bankruptcy  is  to  destroy  its 
customary  use  and  to  defraud  lien-creditors,  whether  by  judgment 
or  mortgage.  Though  not  waste  under  our  statute,  it  is  so  at  com- 
mon law,  and,  like  other  acts  contrary  to  law,  is  restrainable  in  equity. 

The  other  argument  of  the  plaintiffs  in  error  is  akin  to  the  former, 
that  before  a  creditor  can  question  the  disposition  of  a  debtor's 
property,  he  must  have  completed  his  title  by  judgment  and  execu- 
tion. This  is  true  as  to  personal  property,  and  for  this  reason,  that 
the  execution  only,  and  not  the  judgment,  is  a  lien  on  chattels. 
English  cases  were  cited  to  show  that  it  is  true  also  as  to  real  estate 
in  England,  and  for  precisely  the  same  reason  that  a  judgment  there 
is  no  lien  on  land.  It  is  the  execution  which  establishes  the  legal 
relation  between  the  creditor  and  the  debtor's  land,  as  here  it  is  the 
execution  which  establishes  the  legal  relation  between  the  creditor 
and  the  debtor's  goods.  But  our  statutes  bring  judgment-creditors, 
as  the  contract  of  mortgage  brings  mortgagees,  into  direct  relation 
with  the  debtor's  lands,  and  because  the  law  creates  the  relation, 
equity  will  protect  it  —  will  protect  it  not  from  such  reasonable  use 
and  enjoyment  of  the  lands  by  the  owner  as  are  usually  incident  to 
unencumbered  ownership,  but  will  protect  it  from  such  wanton  and 
injurious  acts  as  are  of  the  nature  of  waste. 

The  decree  is  affirmed. 


V.  2.]  FIXTURES:     SEVERANCE.  267 

b.   Severance  by  stranger  or  by  the  forces  of  nature. 

ROGERS  v.  GILINGER. 

30  Pennsylvania  State,  185.  —  1858. 

Trover  by  Rogers  and  another,  assignees  of  Beek  against  Gilinger 
and  others,  purchasers  at  sheriff's  sale  of  realty  of  Beek,  to  recover 
value  of  ruins  of  a  house  alleged  to  be  personal  property  and  to  have 
been  converted  by  defendants.  Judgment  below  for  defendant. 
Plaintiffs  sue  out  this  writ  of  error. 

Strong,  J.  — The  owner  of  a  lot  of  ground  upon  which  had  been 
erected  a  large  frame  building,  conveyed  the  property  to  assignees 
in  trust  for  the  benefit  of  creditors.  Prior  to  the  assignment,  a 
judgment  had  been  recovered  against  the  assignor,  which  was  a  lien 
upon  the  real  estate  conveyed.  Two  days  after  the  assignment  had 
been  made,  a  storm  of  wind  demolished  the  building,  leaving  the 
foundation  and  floors  nearly  entire,  but  breaking  superstructure  '  so 
that  its  materials  could  not  be  replaced,  or  used  in  the  construction 
of  a  similar  building.  While  in  this  condition  the  whole  was  levied 
upon  and  sold  under  executions  founded  upon  the  judgments  against 
the  assignor,  and  the  voluntary  assignees  now  claim  that  the  ruins 
of  the  frame  building  did  not  pass  at  the  sheriff's  sale;  that  they 
were  personal  property,  and  that  the  purchaser  under  the  venditioni 
exponas  having  used  them,  is  responsible  to  the  assignees  in  an  action 
of  trover. 

It  may  be  premised  that  the  assignees  stand  precisely  in  the  shoes 
of  Beek,  the  first  owner.  If  he  could  not  assert  against  the  purchaser 
at  sheriff's  sale,  supposing  no  assignment  had  been  made,  that  the 
fragments  of  the  building  were  personalty,  neither  can  they.  It 
may  also  be  remarked  that  the  purchaser  under  the  judgment  has 
obtained  all  upon  which  the  judgment  was  a  lien. 

Now  clearly  Beek,  the  first  owner,  could  not  have  torn  down  the 
building,  and  converted  the  materials  from  realty  into  personalty, 
without  diminishing  the  security  of  the  judgment,  impairing  its  lien, 
and  wronging  the  judgment-creditor.  Though  the  statutory  writ 
of  estrepement  might  not  have  been  demandable  until  after  levy  and 
condemnation  of  the  property,  yet  equity  would  have  enjoined 
against  any  such  wrong.  The  building,  as  such,  constituted  a  large 
part  of  the  creditor's  security,  and  his  lien  embraced  every  board 
and  rafter  which   made  a  constituent  part  of  the  structure.      Nor 

■Superstructure  was  "severed  from  its  supports  and  broken  up." — Ed. 


268      CONSTITUENTS   AND    INCIDENTS   OF   LAND,       [PT.  II.  CH.  II. 

were  the  rights  of  the  assignees  any  more  extensive.  They  were  mere 
volunteers.  They  took  the  property  as  land  only,  encumbered  as 
a  whole,  and  in  every  part,  by  the  lien  of  the  judgment.  Their  title 
was  in  one  sense  subordinate  to  the  right  of  the  judgment  creditor 
to  take  all  which  passed  to  them  in  satisfaction  of  his  debt. 

In  Herlakenden's  Case,  4  Rep.  62a,  it  was  resolved  that  if  a 
lessee  pulls  down  a  house,  the  lessor  may  take  the  timber  as  a  thing 
which  was  parcel  of  his  inheritance.  So  in  Bowles'  Case,  11  Rep. 
Sib,  it  was  held  that  if  the  lessee  cut  down  timber,  the  lessor  may 
take  it.     Though  severed,  it  is  a  parcel  of  the  inheritance. 

Nor  will  the  tortious  act  of  a  stranger  be  allowed  to  injure  the 
reversion.  2  M.  &  S.  494;  1  Term.  Rep.  55;  Garth  v.  Sir  John 
Cotton,  1  Vesey,  Sr.  524.  These  principles  are  reasserted  in  SJudt  v. 
Barker,  12  S.  &  R.  272;  7  Conn.  232;  3  Wendell,  104.  Nor  will  a 
severance  by  the  owner  of  that  which  was  a  part  of  the  realty,  unless 
the  severance  be  with  the  intent  to  change  the  character  of  the  thing 
severed,  and  convert  it  into  personalty,  prevent  its  passing  with  the 
land  to  a  grantee.  Thus  it  was  held  in  Goodrich  v.  Jones,  2  Hill, 
142,  that  fencing  materials  on  a  farm  which  have  been  used  as  part 
of  the  fences,  but  are  temporarily  detached  without  any  intent  to 
divert  them  from  their  use  as  such,  area  part  of  the  freehold,  and  as 
such  pass  by  a  conveyance  of  the  farm  to  a  purchaser. 

Is  the  rule  different  when  the  severance  occurs  not  by  a  tortious 
act,  nor  by  a  rightful  exercise  of  proprietorship,  without  any  intent 
to  divert  the  thing  severed  from  its  original  use,  but  by  the  act  of 
God?  The  act  of  God,  it  is  said,  shall  prejudice  no  one  (4  Co.  86b), 
yet  the  maxim  is  not  true  if  a  tempest  be  permitted  to  take  away  the 
security  of  a  lien-creditor,  and  transfer  that  which  was  his  to  the 
debtor  or  the  debtor's  assignees.  If  trees  are  prostrated  "per  vim 
venti,"  they  belong  to  the  owner  of  the  inheritance,  not  to  the  lessee. 
Herlakenderi 's  Case,  ut  supra.  He  takes  them  as  a  part  of  the  realty. 
True,  he  may  elect  to  consider  them  as  personalty,  and  this  he 
does  when  he  brings  trover  for  their  conversion,  but  until  such 
election  they  belong  to  him  as  a  parcel  of  the  inheritance.  If  a 
tenant  hold  "  without  impeachment  of  waste,"  the  property  in  the 
timber  is  in  him;  but  if  there  be  no  such  clause  in  his  lease,  and  he 
remove  from  the  land  trees  blown  down,  such  removal  is  waste. 
That  could  not,  however,  be,  unless,  notwithstanding  the  severance, 
they  continue  part  of  the  realty,  for  waste  is  an  injury  to  the 
realty. 

I  am  aware  that  it  is  said  to  have  been  held  that  if  an  apple  tree 
l,r  blown  down,  and  the  tenant  cut  it,  it  is  no  waste.  2  Rolle  Abr. 
S20.     That   may   well   be,  for  the  falling  of  the  tree  is  through  the 


V.  2.]  FIXTURES:     SEVERANCE.  269 

act  of  God,  not  of  the  tenant,  and  the  cutting  of  the  fallen  timber 
is  but  an  exercise  of  the  tenant's  right  to  estovers;  but  if  he  remove 
from  the  land  fallen  timber,  it  has  been  ruled  to  be  waste. 

What  then  is  the  criterion  by  which  we  are  to  determine  whether 
that  which  was  once  a  part  of  the  realty  has  become  personalty  on 
being  detached?  Not  capability  of  restoration  to  the  former  con- 
nection with  the  freehold,  as  is  contended,  for  the  tree  prostrated 
by  the  tempest  is  incapable  of  reannexation  to  the  soil,  and  yet 
remains  realty.  The  true  rule  would  rather  seem  to  be,  that  which 
was  real  shall  continue  real  until  the  owner  of  the  freehold  shall  by 
his  election  give  it  a  different  character.  In  Shepherd's  Touchstone 
90,  it  is  laid  down  that,  "  that  which  is  parcel  or  of  the  essence  of 
the  thing,  although  at  the  time  of  the  grant  it  be  actually  severed 
from  it,  does  pass  by  a  grant  of  the  thing  itself,  and  therefore  by  the 
grant  of  a  mill,  the  mill-stone  doth  pass,  although  at  the  time  of  the 
grant  it  be  actually  severed  from  the  mill.  So  by  the  grant  of  a 
house,  the  doors,  windows,  locks,  and  keys  do  pass  as  parcel 
thereof  although  at  the  time  of  the  grant  they  be  actually  severed 
from  it." 

It  must  be  admitted  that  the  case  before  us  is  one  almost  of  the 
first  impression.  Very  little  assistance  can  be  derived  from  past 
judicial  decision.  There  is  supposed  to  be  some  analogy  between 
the  character  of  these  fragments  of  the  buildings  and  that  of  a  dis- 
placed fixture.  The  analogy,  however,  if  any,  is  very  slight.  These 
broken  materials  never  were  fixtures,  though  they  had  been  fixed 
to  the  land.  They  had  been  as  much  land  as  the  soil  on  which  they 
rested.  Severance  had  never  been  contemplated.  One  of  the  best 
definitions  of  fixtures  is  that  found  in  Shean  v.  Rickie,  5  Mees.  &  W. 
171.  They  are  those  personal  chattels  which  have  been  annexed  to 
the  freehold,  but  which  are  removable  at  the  will  of  the  person  who 
has  annexed  them,  or  his  personal  representatives,  though  the  prop- 
erty in  the  freehold  may  have  passed  to  other  persons.  Yet  even 
fixtures,  which  but  imperfectly  partake  of  the  character  of  realty, 
go  to  the  purchaser,  at  sheriff's  sale  of  the  land,  though  they  have 
been  severed  tortiously,  or  by  the  act  of  God.  Thus,  where  a  copper 
kettle  had  been  detached  from  its  site  in  a  brewery  by  one  not  the 
owner,  had  remained  detached  for  a  long  period,  and  while  thus 
severed,  had  been  pledged  by  the  personal  representatives  of  the 
owner,  it  was  still  held  to  have  passed  by  a  sheriff's  sale  of  the 
brewery  under  a  mechanic's  lien,  filed  before  the  severance.  Gray 
v.  Holdship,  17  S.  lSc  R.  413. 

Without,  however,  discussing  the  question  further,  it  will  be  per- 
ceived that  in  our  opinion  the  broken  materials  of  the  fallen  building 


2/0      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [FT.  II.  CH.  II. 

must  be  considered  as  a  parcel  of  the  realty  as  between  the  assignees 
and  the  purchaser  at  sheriff's  sale,  and  consequently  that  they  passed 
by  the  sale  to  the  purchaser.1 

The  judgment  is  affirmed. 


C.   Sale  of  fixtures  on  execution. 

RICE  v.  ADAMS. 

4  Harrington  (Del.),  332.  —  1848. 

Harrington,  J.  —  The  property  levied  on  by  this  execution,  so 
far  as  the  present  motion  appears,  consists  of  real  fixtures  placed 
upon  the  premises  by  the  owner  of  the  property,  and  by  him  attached 
to  the  freehold.  They  became  by  his  act  a  part  of  the  foundry,  not 
for  a  temporary  purpose,  but  as  a  fixed  establishment;  and,  as  such, 
were  used  by  the  defendants  in  copartnership,  the  owner  of  the 
premises  being  one  of  the  partners.  Having  thus  acquired  the 
character  of  real  property  by  such  a  union  and  connection  with  the 
realty  as  unquestionably  made  them,  in  his  hands,  a  part  of  the  free- 
hold, subject  to  real  estate  liens,  and  not  liable  to  be  seized  as  chattels, 
this  character  could  not  be  changed  otherwise  than  by  actual  sever 
ance ;  nor  could  they  be  transferred  before  severance  except  as  a  part 
of  the  realty,  and  by  forms  of  conveyance  suited  to  real  property. 
The  parol  sale,  therefore,  to  Adams,  Betts  &  Hodgson,  evidenced  by 
the  written  memorandum  without  date,  even  if  made  before  the  entry 
of  Orrick  &  Campbell's  judgment,  would  not  prevent  the  lien  of  that 
judgment,  nor  subject  these  fixtures  to  seizure  on  plaintiff's  execu- 
tion as  the  personal  chattels  of  the  defendants  in  preference  to  the 
judgment  of  Orrick  &  Campbell.  We  are,  therefore,  of  opinion  that 
the  rule  in  this  case  should  be  made  absolute;  and  we  do  not  con- 
sider this  as  in  any  degree  conflicting  with  adjudged  cases  in  relation 
to  trade  fixtures  set  up  by  tenants,  for  their  own  use  and  convenience, 
to  facilitate  the  carrying  on  their  business. 

'See  also  Goodrich  v.  Jones,  supra,  p.  255. —  Ed. 


V.  3-]  FIXTURES:    INTENTION    IN   ANNEXING.  2J I 

3.  The  Intention  of  the  Party  Annexing  as  Bearing  on  the 
Question  of  Removability. 

a.  Relative  importance  of  this  test. 

McREA  v.  CENTRAL  NATIONAL  BANK  OF  TROY. 

66  New  York,  489.  —  1876. 

Action  by  plaintiff  as  real  estate  mortgagee  against  defendants, 
who  are  judgment-creditors  of  the  mortgagor  and  the  sheriff  holding 
executions  on  their  judgments,  to  restrain  them  from  selling  on  such 
executions  certain  machinery  which  plaintiff  claims  to  be  part  of  the 
realty.  The  further  facts  sufficiently  appear  in  the  opinion.  The 
plaintiff  succeeded  in  the  trial  court  and  on  an  appeal  to  the  General 
Term.     Defendant  appeals  to  this  court. 

Rapallo,  J. — The  court  found  as  facts  that  the  articles  of 
machinery  described  in  the  complaint  were  fixtures  and  part  of  the 
freehold,  and  as  facts  showing  that  they  were  fixtures:  First,  that 
the  building  in  which  the  machinery  was,  was  erected  for  the  purpose 
of  a  twine  factory,  and  machinery  specially  adapted  to  it  and  used 
with  it;  second,  that  the  original  intention  of  this  annexation  was  to 
make  this  machinery  permanently  a  part  of  the  building  and  the 
freehold;  and,  third,  that  the  mortgage  under  which  the  plaintiff 
claims  title  was  to  secure  to  him  the  payment  of  the  purchase  money 
of  the  premises  described  therein,  and  was  taken  by  him  and  given 
to  him  with  the  intention  of  holding  the  machinery  in  question  as 
part  of  the  realty,  and  not  as  personal  property. 

In  supplemental  findings  made  at  the  request  of  the  defendants 
and  inserted  in  the  case  on  settlement,  the  court  found,  as  further 
facts,  that  each  of  the  machines,  except  two,  was  a  machine  com- 
plete in  itself,  which  received  no  support  from  the  walls,  ceilings  or 
roof  of  the  building,  and  would  operate,  with  the  proper  power 
applied  to  it,  wherever  it  was  placed,  and  that  all  the  machines 
could  be  taken  apart  without  injury  to  themselves  or  to  the  building 
in  which  they  were  placed,  except  such  injury  as  would  result  from 
the  loosening  of  the  fastenings,  and  could,  without  injury,  be  put 
together  again  and  operated  in  any  place  where  there  was  sufficient 
room  for  them  to  stand  and  where  the  necessary  power  could  be 
applied.  That  none  of  the  machines,  except  the  two  iron  softeners, 
were  attached  to  the  building  except  as  follows:  Some  of  them 
were  fastened  to  the  floor  at  the  end  where  the  belt  went  on,  by 
angle  bolts  made  for  the  purpose,  which  held  the  feet  of  the  machines 
to  the  floor;  these  bolts  went  down  through  the  floor,  and  were  held 


2~J2       CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

by  nuts  screwed  on  below  the  floor.  Others  were  held  by  nails  of 
similar  construction;  others  by  common  nails,  and  one  or  two  by 
cleats  of  wood,  nailed  down  on  each  side  of  the  machine;  they  were 
also  attached  to  the  gearing.  That  the  bolts,  nails  and  cleats  were 
so  placed  for  the  purpose  of  steadying  the  machines  and  preventing 
them  from  being  moved  or  lifted  up  by  the  action  of  the  belt.  But 
to  this  finding  the  court  added  that  that  was  not  the  only  purpose. 
On  these  findings,  assuming  them  to  be  sustained  by  evidence,  I 
think  it  clear  on  all  the  authorities  cited,  that  the  conclusion  that, 
as  between  the  present  parties,  the  machines  were  fixtures  and  part 
of  the  freehold  was  correct.  The  rule  declared  by  statute  (2  R.  S. 
83,  sees.  6  and  7),  as  between  the  personal  representatives  and  the 
heirs  of  a  deceased  party,  is  not  controlling  in  cases  between  vendor 
and  vendee.  Potter  v.  Cromwell,  40  N.  Y.  287;  Voorhees  v.  McGinnis, 
48  Id.  278;  House  v.  House,  10  Paige,  158.  That  enactment  makes 
the  mode  of  annexation  the  test  whether  the  property  retains  its 
character  of  personalty,  and  gives  to  the  executor  or  administrator 
things  annexed  to  the  freehold,  or  to  any  building,  for  the  purpose 
of  trade  or  manufacture,  and  not  fixed  into  the  wall  of  a  house,  so 
as  to  be  essential  to  its  support.  But,  as  between  vendor  and 
vendee,  the  mode  of  annexation  is  not  the  controlling  test.  The 
purpose  of  the  annexation,  and  the  intent  with  which  it  was  made, 
is  in  such  cases  the  most  important  consideration.  The  permanency 
of  the  attachment  does  not  depend  so  much  upon  the  degree  of 
physical  force  with  which  the  thing  is  attached  as  upon  the  motive 
and  intention  of  the  party  in  attaching  it.  If  the  article  is  attached 
for  temporary  use  with  the  intention  of  removing  it,  a  mortgagee 
cannot  interfere  with  its  removal  by  the  mortgagor.  If  it  is  placed 
there  for  the  permanent  improvement  of  the  freehold,  he  may.  Crane 
v.  Bingham,  3  Stockton,  N.  J.  29;  Potter  v.  Cromwell,  40  N.  Y.  296, 
297.  The  mode  of  annexation  may,  it  is  true,  in  the  absence  of 
other  proof  of  intent,  be  controlling.  It  may  be  in  itself  so  insepa- 
rable and  permanent  as  to  render  the  article  necessarily  a  part  of  the 
realty,  and  in  case  of  less  thorough  annexation,  the  mode  of  attach- 
ment may  afford  convincing  evidence  that  the  intention  was  that  the 
attachment  should  be  permanent;  as,  for  instance,  where  the  build- 
ing is  constructed  expressly  to  receive  the  machine  or  other  articles, 
and  it  could  not  be  removed  without  material  injury  to  the  building, 
or  where  the  article  would  be  of  no  value  except  for  use  in  that  par- 
ticular building,  or  could  not  be  removed  therefrom  without  being 
destroyed  or  greatly  damaged.  These  are  tests  which  have  been 
frequently  applied  in  determining  whether  the  annexation  was 
intended   to  be   temporary  or  permanent,  but  they  are  not  the  only 


V.  3-J  FIXTURES:     INTENTION   IN   ANNEXING.  273 

ones,  nor  is  it  indispensable  that  any  of  these  conditions  should 
exist.  In  the  case  of  Potter  v.  Cromwell,  40  N.  Y.  287,  before 
referred  to,  this  court,  after  a  full  examination  of  the  numerous 
authorities,  gave  its  approval  to  the  criterion  of  a  fixture  as  stated 
in  Teaffx.  Hewitt,  1  McCook,  511,  viz.,  the  union  of  three  requi- 
sites. First.  Actual  annexation  to  the  realty  or  something  appur- 
tenant thereto.  Second.  Application  to  the  use  or  purpose  to  which 
this  part  of  the  realty  with  which  it  is  connected  is  appropriated. 
Third.  The  intention  of  the  party  making  the  annexation  to  make  a 
permanent  accession  to  the  freehold.  By  the  application  of  that 
criterion  this  court,  with  only  one  dissenting  voice,  decided  that  a 
portable  grist-mill  for  grinding  flour,  placed  in  a  building  which  had 
been  used  as  a  tannery,  and  was  provided  with  steam  power  pre- 
viously placed  in  the  building  to  grind  bark  for  the  tannery,  became 
part  of  the  freehold,  as  between  a  judgment-creditor  and  a  pur- 
chaser of  the  realty.  It  was  found  by  the  referee  that  the  grist-mill 
was  placed  there  by  the  owner  of  the  realty  for  the  purpose  of  being 
used  as  a  permanent  structure  for  a  custom  grist-mill  for  the  neigh- 
borhood, and  on  that  ground  it  was  held  by  this  court  to  have 
become  part  of  the  realty,  notwithstanding  the  fact  that  it  was  not 
attached  to  the  walls  of  the  building,  but  annexed,  as  in  the  present 
case,  only  to  the  floor.  It  had  been  built  elsewhere,  and  was  con- 
structed in  such  a  manner  as  to  be  readily  taken  apart  without  injury 
to  itself  or  to  the  building,  and  moved  from  place  to  place.  There 
was  a  very  slight  difference  in  the  mode  of  annexation  from  tnat 
in  the  present  case,  to  wit:  That  to  support  the  floor,  upright  posts 
were  placed  under  it  resting  on  the  cellar  floor,  while  in  the  present 
case  the  building  was  constructed  expressly  for  the  purpose  of 
receiving  machinery  of  the  description  which  was  placed  there,  and 
of  sufficient  strength  to  render  additional  support  unnecessary, 
although,  in  the  present  case,  some  of  the  machines  weighed  three 
or  four  times  as  much  as  the  portable  grist-mill.  The  case  of 
Murdoch  v.  Gifford,  18  N.  Y.  28,  which  is  mainly  relied  upon  by  the 
appellant  here,  was  distinguished  by  showing  that,  in  that  case,  not 
only  was  there  an  entire  absence  of  any  finding  that  the  looms  were 
placed  in  the  building  and  attached  thereto  for  the  purpose  of 
becoming  a  permanent  part  of  it,  but  that  that  fact  was  expressly 
negatived  by  the  finding  that  the  attachment  was  for  the  sole  pur- 
pose of  keeping  them  steady  in  their  places  —  a  fact  which  the  court, 
in  the  present  case,  although  requested  expressly,  refused  to  find. 
Numerous  other  cases  are  referred  to,  where,  notwithstanding  similar 
attachments,  the  property  was  held  to  be  personalty;  but  it  appears 
that  in  all  these  cases   the  object  of  the  attachment  excluded  the 

LAW  OF  PROP.   IN  LAND —  l8 


274      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

intention  of  rendering  them  permanent  fixtures.  The  object,  and 
not  the  method  of  the  attachment,  appears  to  be  considered  the  con- 
trolling feature.  "  The  principles  applicable  as  between  vendor  and 
purchaser  must  vary  with  the  varying  circumstances  of  each  case. 
The  question  of  intention  enters  into  and  makes  an  element  of  each 
case.  The  circumstances  are  to  be  taken  into  account  to  show 
whether  the  erections  were  made  for  the  permanent  improvement  of 
the  freehold  or  for  the  temporary  purpose  of  trade."  Farrar  v. 
Chauffetcte,  5  Denio,  527.  These  principles  are  recognized  in  the 
case  of  Voorhees  v.  McGinnis,  48  N.  Y.  278.  The  annexation  in  that 
case,  it  is  true,  was  of  a  much  more  complete  character  than  in  the 
present  case,  or  in  that  of  Potter  v.  Cromwell,  40  N.  Y.  287,  but  the 
intention  of  the  parties  in  making  the  annexation  is  recognized  as 
one  of  the  tests,  and  it  is  conceded  that  the  circumstances  that  the 
machinery  may  or  may  not  be  removed  without  injury  to  the  building 
or  to  itself  is  not  now  deemed  to  be  controlling,  and  Washburn  on 
Real  Property,  vol.  1,  p.  8,  is  cited,  in  which  the  author  says:  "  It  may 
be  stated  that  whether  a  thing  which  may  be  a  fixture  becomes  a  part 
of  the  realty  by  annexing  it  depends,  as  a  general  proposition,  upon 
the  intention  with  which  it  was  done." 

That  the  machinery  in  question  was  adapted  to  the  use  for  which 
the  building  was  constructed  is  conceded,  and,  without  further 
pursuing  the  authorities,  I  will  briefly  refer  to  those  cited  in  the 
opinion  of  my  learned  brother,  Allen,  J.,  in  support  of  the  propo- 
sition that  these  were  not  fixtures.  Hellaivcll  v.  Eastwood,  6  Exch. 
W.,  H.  &  G.,  295,  was  a  case  between  landlord  and  tenant.  The 
alleged  fixtures,  presumably,  were  put  in  by  the  tenant,  as  they  were 
distrained  for  rent.  The  object  and  purpose  of  the  annexation  was 
stated  by  the  court  not  to  have  been  to  improve  the  inheritance,  but 
merely  to  render  the  machines  steadier  and  more  capable  of  use  as 
chattels. 

Walker  v.  Sherman,  20  Wend.  636,  was  partition,  and  although  the 
machines  in  dispute  had  been  for  many  years  in  the  building,  the 
difficulty  was  that  they  were  not  affixed  or  fastened  to  the  building 
in  any  manner,  and  the  commissioners  treated  them  as  personalty; 
but  other  machinery  in  the  same  factory,  which  was  fastened  to  the 
building,  was  treated  as  realty.  (See  pp.  637,  638.)  This  case  holds, 
in  respect  to  machinery,  that  the  two  characteristics  of  adaptation 
to  the  enjoyment  of  the  realty  and  annexation  to  it  must  concur,  but 
tin!  where  the  former  characteristic  is  present,  the  slightest  fasten- 
ing; will  be  sufficient  to  constitute  annexation.  (See  pp.  651,  653, 
655O  It  is  enough  that  it  is  permanently  or  habitually  attached. 
In  Vanderpoel  v.  Van  Allen,  10  Barb.  157,  the  machines  merely  stood 


V.  3-]  FIXTURES  :     INTENTION  IN  ANNEXING.  275 

upon  the  flaor,  without  being  attached  in  any  way,  except  by  the 
belts  which  were  used  for  motion  and  not  for  fastening,  except  as 
to  some  of  the  pieces,  in  respect  to  which  cleats  were  used  to  make 
them  stand  level,  and  there  was  no  evidence  of  any  intention  to 
make  them  part  of  the  freehold,  but  all  the  facts  tended  to  the  con- 
trary. Murdoch  v.  Gijford,  18  N.  Y.  28,  has  already  been  referred 
to,  and  only  establishes  that  the  mode  of  attachment  shown  in  that 
case  was  not  of  itself  sufficient  to  make  the  machines  fixtures,  where 
the  purpose  of  the  attachment  was  solely  for  the  more  convenient 
use  of  them  as  chattels,  and  in  the  absence  of  any  intention  that  it 
should  be  permanent. 

The  finding  of  the  court  that,  in  the  present  case,  the  original 
intention  of  the  annexation  was  to  make  the  machinery  permanently 
a  part  of  the  building  is  not,  I  think,  unsupported  by  evidence. 
The  building  was  proved  to  have  been  erected  especially  for  the  pur- 
pose of  a  twine  factory,  and  with  reference  to  holding  this  descrip- 
tion of  machinery.  The  machines  were  of  great  weight,  many  of 
them  weighing  from  one  to  four  tons.  They  were  all  permanently 
fastened  to  the  floor  of  the  building,  and  it  is  conceded  that  the)' 
were  adapted  to  the  purposes  for  which  the  building  was  erected. 
The  plaintiff  testified  that  they  were  placed  there  for  permanent  use. 
The  fair  interpretation  of  this  evidence  is  that  they  were  placed  there 
for  permanent  use  in  that  building;  they  constituted  part  of  the 
twine  factory,  and  about  two-fifths  in  value  of  the  entire  establish- 
ment; and  it  appeared  in  evidence  that  although  they  were  capable 
of  removal  they  would  be  of  less  value  if  taken  out  and  sold  than  if 
they  remained  where  they  were,  as  part  of  the  factory.  From  this 
evidence  the  court  was,  I  think,  justified  in  finding  that  they  were 
intended  as  a  permanent  part  of  the  structure,  quite  as  much  so  as 
the  portable  grist-mill  in  the  case  of  Potter  v.  Cromwell,  40  N.  Y. 
287.  The  dealings  between  the  plaintiff  and  his  vendee,  also  showed 
that  they  were  regarded  as  fixtures  which  passed  with  the  land;  and 
although,  if  the  property  had  in  its  own  nature  a  determinate  legal 
character,  either  as  realty  or  personalty,  the  manner  in  which  the 
parties  treated  it  would  not  change  that  character;  yet  when,  as  in 
this  case,  the  character  of  the  property  is  not  so  fixed,  but  depends 
upon  the  intention  with  which  it  was  annexed,  the  conduct  of  the 
party  who  annexed  it  has  an  important  bearing,  as  throwing  light 
upon  that  intention.  He  evidently  understood  that  it  was  part  of 
the  realty,  which  he  could  not  have  done  if  he  had  placed  it  on  the 
premises  for  temporary  use  merely,  and  with  the  intention  that  it 
should  remain  personalty.  When  contracting  for  the  sale  of  the 
property,  he  described  it  as  the  real  estate  situate  in  Johnsville,  viz., 


2/6      CONSTITUENTS    AND    INCIDENTS    OF    LAND.       [PT.  II.   CH.  II. 

the  twine  factory  and  flax-mill,  etc.,  etc.,  with  the  machinery,  etc., 
and  sold  the  whole  for  a  gross  sum  of  $28,000.  By  this  oontract  he 
includes  the  machinery  under  the  general  head  of  real  estate,  and  in 
fulfillment  of  that  contract  he  tendered  a  conveyance  describing  the 
land  only,  and  took  back  a  mortgage  for  $21,000  of  the  purchase- 
money,  describing  the  land  only,  although  the  land  and  buildings, 
without  the  machinery,  were  worth  a  much  less  sum  than  the  amount 
of  the  mortgage.  The  fact  that  at  the  request  of  the  purchaser  he 
afterwards  executed  a  supplementary  bill  of  sale  is  not  of  much 
significance.  It  is  found  by  the  court  that  there  were  some  tools  and 
machinery  which  were  loose  and  are  not  claimed  in  the  action.  The 
bill  of  sale  also  includes  fixtures,  which  necessarily  passed  with  the 
deed.  It  was  not  a  necessary  instrument,  as  whatever  was  person- 
alty would  have  passed  by  delivery;  but  it  was  probably  given 
because  it  conformed  to  the  intention  of  the  plaintiff  and  was  a 
simple  confirmation  of  what  he  believed  he  had  already  done,  and 
was  requested  by  the  purchaser  or  his  adviser. 

After  it  has  been  so  repeatedly  declared  by  the  courts  that  the 
character  of  articles  of  the  description  now  in  controversy  attached 
to  a  building,  whether  they  are  to  be  regarded  as  realty  or  personalty, 
is  to  be  determined  by  the  intent  of  the  party  attaching  them,  it 
would  be  peculiarly  unjust  to  depart  from  that  doctrine  in  a  case 
like  the  present,  where  the  owner  of  the  land  and  buildings,  who 
himself  made  the  annexation,  and  necessarily  knows  the  intent  with 
which  it  was  made,  afterwards  sells  the  whole  establishment  and 
takes  for  the  purchase-money  a  mortgage  manifestly  intended  to 
cover  all  the  property  sold,  but  which  would  be  a  totally  inadequate 
security  if  the  property  which  he  had  annexed  were  not  treated  as 
a  part  of  the  realty.  There  can  be  no  equity  in  such  a  case  in  favor 
of  a  mere  judgment-creditor  of  the  vendee  as  against  the  mortgagee. 

On  the  whole  case  I  think  the  findings  of  fact  are  sustained  by 
evidence,  and  that  the  decision  of  the  court  below  should  be 
affirmed,  with  costs. 

Folger,  J. — I  think  that,  either  from  the  evidence  or  the  findings, 
the  grantor  and  mortgagee  placed  the  machinery  in  the  building  for 
a  permanent  purpose  and  for  the  better  enjoyment  of  his  estate. 
Walmsley  v.  Milne,  7  C.  B.  (N.  S.)  *i  15 ;  that  there  did  concur  actual 
annexation  of  the  machinery;  applicability  to  the  use  to  which  that 
part  of  the  real  estate  was  appropriated,  with  which  it  was  con- 
ne<  ted;  and  an  intention  of  making  the  annexation  so  as  to  make  a 
permanent  accession  to  the  freehold.  Ifoylr  v.  P.  and M.  Railroad, 
54  x'-   V.  Ji|-  324. 

I  therefore  concur  in  the  opinion  of  Rappalo,  J. 


v.  a]  fixtures:  intention  in  annexing.  277 

Allen,  J.  (dissenting). —  The  question  presented  by  this  appeal  is, 
whether  the  plaintiff,  as  mortgagee  of  real  property,  or  the  defend- 
ants, as  execution  creditors  of  the  mortgagor  has  the  better  legal 
right  to  hold  the  machinery  mentioned  in  the  pleadings  as  security 
for  their  respective  debts.  The  property  in  controversy  is  in  its 
nature  personal,  subject  to  a  levy  and  sale  upon  execution,  and  would 
not  ordinarily  pass  under  a  conveyance  or  mortgage  of  realty.  It 
can  only  be  classed  with,  and  treated  as,  a  part  of  the  realty  upon 
which  it  may  be  or  in  connection  with  which  it  is  used  by  annexation 
thereto,  either  actual  or  constructive.  It  belongs  to  that  class  of 
property  which,  under  some  circumstances,  may  be  annexed  to  real 
property  and  become  what  is  known  in  the  law  as  a  fixture,  so  as  to 
pass  under  a  conveyance  of  the  lands  and  as  part  of  them,  in  con- 
formity with  the  maxim,  "  Quicquid  plantatur  solo,  solo  cedit." 
Whether  a  chattel  has,  by  annexation,  become  a  part  of  the  realty 
depends  upon  circumstances,  and  very  much  upon  the  intent  of  the 
party  by  whom  the  annexation  has  been  made,  as  such  intent  can  be 
gathered  from  what  is  said  and  done  at  the  time  —  the  character  of 
the  chattel  and  the  purposes  for  and  the  manner  in.  which  the  annexa- 
tion is  made.  If  the  chattel  is  not  a  necessary  accessory  to  the 
building,  and  is  placed  in  position  merely  for  the  purpose  of  using  it 
for  manufacturing  or  trading  purposes,  and  not  with  a  view  to  the  per- 
manent benefit  of  the  realty,  it  will  not,  ordinarily,  become  a  part  of 
the  realty.  Where  the  object  of  affixing  the  chattel  to  the  freehold  is 
for  its  more  convenient  use  as  a  chattel,  as  shown  by  its  nature  and 
the  use  to  which  it  is  put,  it  will  retain  the  character  which  it  had 
before  it  was  annexed.  The  law  of  fixtures  has  been  the  subject  of 
much  discussion  in  the  courts  and  by  elementary  writers,  and  any 
attempt  to  reconcile  the  views  of  judges  or  commentators,  or  to 
deduce  from  them  any  fixed  or  certain  standard  or  rule  by  which  to 
determine  whether,  in  any  given  case,  a  chattel  has  lost  its  character 
as  such  and  become  a  part  of  the  freehold,  would  be  vain.  So  a  dis- 
cussion at  any  length  of  the  general  principles  of  the  law  of  fixtures, 
or  a  review  of  the  authorities,  would  not  be  profitable,  in  view  of  all 
that  has  been  written  upon  the  subject.  We  are  relieved  from  the 
necessity  of  a  consideration  of  the  general  rules  applicable  to  this 
branch  of  the  law  by  adjudications  heretofore  made,  which  have,  in 
this  State  at  least,  become  a  rule  of  property,  and  cannot  properly 
be  disregarded  by  us,  and  which  are  decisive  of  the  questions 
involved  in  this  appeal.  The  chattels  and  machinery,  the  subject 
of  the  controversy  in  this  action,  were  not  so  annexed  to  the  build- 
ing as  to  become  a  part  of  it,  or  necessary  to  its  support,  but  they 
were  susceptible  of  removal  without  material  injury  to  themselves  or 


278      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

the  realty.  The  only  fastenings  were  such  as  were  required  to  keep 
the  machinery  steady  while  in  operation.  The  fastenings  were  only 
for  that  purpose,  and  the  only  connection  with  the  motive  power 
and  other  permanent  machinery  was  by  bands  and  straps,  by  means 
of  which  it  was  operated.  It  was  not  a  part  of,  or  necessary  to,  the 
stationary  and  permanent  machinery.  It  was  not  peculiarly  fitted 
for  or  adapted  to,  the  building  in  which  it  was,  but  was  equally 
capable  of  being  used  in  any  other  building  having  strength  to  sup- 
port it,  and  motive  power  for  its  operation.  It  was  of  the  same 
general  character  of  machinery  as  was  used  for  the  same  purpose 
elsewhere,  and  its  value  was  not  impaired  by  removal. 

The  mortgage  under  which  the  plaintiff  claims,  follows  the  grant 
by  the  plaintiff  to  the  mortgagor  and  is  of  the  realty  described  by 
metes  and  bounds  without  mention  of  the  machinery.  The  evidence 
that  the  purchase  by  the  mortgagor  of  the  plaintiff  was  of  the  land 
together  with  the  "  machinery,  tools,  and  fixtures  "  belonging  to 
the  vendor,  for  a  sum  in  gross,  does  not  tend  to  prove  that  the 
machinery,  any  more  than  the  tools,  was  a  part  of  the  realty.  On 
the  contrary,  the  fact  that  both  are  mentioned  independently  and 
separately  is  some  indication  that  it  was  supposed  neither  would  be 
included  in  the  sale  of  the  lands  without  express  mention.  Aside 
from  the  evidence  admitted  under  objection  of  the  purpose  and 
intent  of  the  plaintiff  to  take  security  upon  the  machinery,  fixtures 
and  tools,  as  well  as  the  land,  which  we  think  was  incompetent,  there 
was  no  evidence  that  the  plaintiff  at  the  time  he  put  the  machinery 
in  the  mill  had  any  intent  other  than  to  use  it  for  the  purpose  to 
which  it  was  adapted  so  long  as  it  should  be  convenient  or  profit- 
able, or  that  he  intended  to  connect  it  permanently  with  the  realty 
with  a  view  to  enhance  its  value.  In  other  words,  there  was  no  evi- 
dence to  justify  a  finding  that  the  machinery  was  put  in  the  building 
except  for  use  as  a  chattel.  If  the  property  in  controversy  was  not 
described  in  the  mortgage  or  covered  by  it  as  part  of  the  property 
mentioned  and  described  therein,  the  purpose  and  intent  of  the  mort- 
gagee could  not  vary  the  legal  effect  of  that  instrument,  or  make  it 
operative  upon  property  not  within  its  terms.  The  case  is  clearly 
within  the  principle,  and  cannot  be  distinguished  from  several  well 
considered  cases,  in  which  the  question  has  arisen  between  owners 
or  mortgagees  of  the  freehold  and  creditors.  In  Hellawell  v.  East- 
wood, 6  Exch.  W.  H.  &  G.  294,  it  was  adjudged,  that  machinery  for 
the  purpose  of  manufacture  (/.  e.,  mules  used  for  spinning  cotton), 
fixed  by  means  of  screws,  some  into  the  wooden  floors  of  a  cotton- 
mill  and  some  by  being  sunk  into  the  some  flooring  and  secured  by 
molten    lead,    were    distrainable    for    rent.      Fixtures    are    not    the 


V.  3-]  FIXTURES  :     INTENTION   IN   ANNEXING.  279 

subjects  of  a  distress  for  rent.  In  Walker  v.  Sherman,  20  Wend.  636, 
machinery  in  a  woolen  factory,  consisting  of  carding  machines, 
picking  machines,  looms,  etc.,  although  used  for  eleven  years  or 
more,  and  passed  from  one  owner  of  the  factory  to  another  as  parts 
of  the  factory,  were  treated  as  personal  property  and  as  not  belong- 
ing to  the  realty  by  commissioners  in  partition,  and  their  decision 
and  action  was  affirmed  by  the  Supreme  Court  upon  an  elaborate 
review  of  all  the  authorities  bearing  upon  the  question.  In  Vander- 
poel  v.  Van  Allen,  10  Barb.  157,  the  question  was  between  mort- 
gagees of  the  realty  and  judgment-creditors  of  the  mortgagors  who 
had  levied  upon  the  machinery  in  a  cotton  factory  and  other  mills, 
being  the  premises  mortgaged  to  the  plaintiffs.  The  machinery  in 
controversy  there  was  the  same  as  that  in  controversy  here,  and  was 
placed  and  fastened  to  the  building  substantially  in  the  same  man- 
ner. It  was  held  by  Judge  Brown,  that  the  property  was  not  part 
of  the  realty  or  within  the  denomination  of  fixtures,  and  that  the 
judgment-creditors  were  entitled  to  a  decree  dissolving  the  injunc- 
tion and  establishing  their  right  to  the  property  in  dispute.  Murdock 
v.  Gifford,  18  N.  Y.  28,  was  also  a  controversy  between  mortgagees 
and  creditors,  involving  the  same  question,  and  it  received  the  same 
solution  as  in  Vanderpoel  v.  Van  Allen,  supra.  Cases  have  been 
since  decided  in  this  court  distinguished  by  their  circumstances 
from  those  referred  to,  and  the  circumstances  which  have  been 
deemed  sufficient  to  take  them  out  of  the  principles  adjudged  in 
Murdock  v.  Gifford,  are  pointed  out  by  the  judges  pronouncing  judg- 
ment; but  in  no  case  that  has  come  under  my  observation  has  the 
authority  of  the  case  last  mentioned  been  questioned.  Many  other 
cases  in  this  State,  in  other  States  and  England,  coincide  with  the 
rule  as  stated  in  Murdoch  v.  Gifford.  There  is  nothing  in  this  case 
to  distinguish  it  from  that  and  we  are  not  at  liberty,  by  reason  of 
any  supposed  equities  in  favor  of  either  party,  to  unsettle  the  law  so 
well  established  in  this  State  by  taking  distinctions  immaterial  and 
without  substance  for  the  purpose  of  arriving  at  a  different  result. 
These  machines  were  not,  as  said  before,  fitted  to  this  building  and 
insusceptible  of  use  elsewhere,  neither  were  they  accessories  neces- 
sary to  the  enjoyment  and  use  of  the  building  in  which  they  were. 
The  learned  judge  erred  in  holding  that  the  several  articles  were 
fixtures,  and  the  facts  found  by  him  in  support  of  such  findings,  so 
far  as  they  were  authorized  by  the  evidence  were  entirely  insufficient 
to  make  them  a  part  of   the  freehold. 

For  affirmance:    Church,  Ch.  J.,  Rapallo,  Folger  and  Miller, 
JJ.     For  reversal:     Allen,  Andrews  and  Earl,  JJ.1 

1  For  citations  and  discussions  of   this  case,  in  cases  reported  herein,  see  pp. 
235  and  260. —  Ed. 


280      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

b.    The  actual  intent  of  the  annexer. 

SNEDEKER  v.  WARRING. 

12  New  York,  170.  —  1854. 

[Reported  herein  at  p.  231.] 


McKEAGE  v.  HANOVER  FIRE  INSURANCE  CO. 

81  New  York,  38.—  1880 
[Reported  herein  at  p.  245.] 


c.    The  "  reasonably  presumable  intent'''  in  annexing,  as  inferred  from 
the  surrounding  circumstances. 

(1.)  What  is  Meant  by  "  Reasonably   Presumable  Intent." 

THE  STATE  SAVINGS  BANK  v.  KERCHEVAL. 

65  Missouri,  682.  —  1877. 

Suit  to  enjoin  the  removal  of  a  frame  building. 

Defendant  Kercheval  conveyed  his  lands  to  a  trustee  to  secure  a 
debt  due  plaintiff.  Thereafter  he  employed  defendant,  Allen,  to 
erect  an  office  building  on  the  premises.  This  structure  was  a  tem- 
porary affair,  built  with  intention  that  it  should  be  removed.  Kerche- 
val becoming  insolvent,  transferred  it,  in  settlement  of  account,  to 
Allen,  who  is  now  about  to  remove  it. 

The  court  below  granted  a  perpetual  injunction.  Defendant 
appeals. 

Henry,  J. — The  questions  for  consideration  here  are:  1st.  Was 
the  building,  which  it  is  alleged  the  defendants  were  about  to  remove, 
personal  property? 

2d.  If  not,  would  an  action  for  damages  have  afforded  an  adequate 
remedy. 

It  must  be  admitted  that  the  law  in  regard  to  fixtures  is  in  a  some- 
what chaotic  state.  It  is  frequently  difficult  to  determine,  upon 
principle,  whether  an  article  of  property  is  a  fixture  or  not;  there  is 
a  must  embarrassing  conflict  in  the  adjudged  cases.  On  grounds  of 
publi<  policy,  to  encourage  trade,  manufactures  and  agriculture, 
many  things  are  regarded  as  chattels  in  controversies  between  land- 
lords and  truants,  which  would  unquestionably  be  held  as  fixtures  as 


V.  3-]  FIXTURES:    INTENTION    IN    ANNEXING.  28l 

between  vendor  and  vendee;  and  the  same  rule  prevails  between 
mortgagor  and  mortgagee,  as  between  grantor  and  grantee.  1,\ 
determining  whether  a  building  is  part  of  and  passes  with  the  land, 
a  good  deal  depends  upon  the  object  of  its  erection,  the  use  for 
which  it  was  designed.  The  intention  of  the  party  making  the 
improvement,  ultimately  to  remove  it  from  the  premises,  will  not, 
by  any  means,  be  a  controlling  fact.  One  may  erect  a  brick  or  a 
stone  house,  with  an  intention,  after  brief  occupancy,  to  tear  it 
down  and  build  another  on  the  same  spot,  but  that  intention  would 
not  make  the  building  a  chattel.  "  The  destination  which  gives  a 
movable  object  an  immovable  character,  result  from  facts  and  circum- 
stances determined  by  the  law  itself,  and  could  neither  be  established 
not  taken  away  by  the  simple  declaration  of  the  proprietor,  whether 
oral  or  written."  Sncdeker  v.  Warring,  2  Kernan,  178.  In  Goff  v. 
O 'Conner,  16  111.  422,  the  court  said:  "  Houses  in  common  intend- 
ment of  the  law,  are  not  fixtures,  but  part  of  the  land. 
This  does  not  depend,  in  the  case  of  houses,  so  much  upon  the  par- 
ticular mode  of  attaching  or  fixing,  and  connecting  them  with  the 
land,  upon  which  they  stand  or  rest,  as  upon  the  uses  and  purposes 
for  which  they  were  erected  and  designed."  In  Cole  v.  Stewart,  n 
Cush.  182,  the  building  was  intended  by  the  owner  to  be  temporary, 
and  was  built  with  a  view  to  ultimate  removal.  In  a  contest  between 
the  mortgagee,  whose  mortgage  was  executed  subsequent  to  the 
erection  of  the  house,  and  a  purchaser  of  the  building  from  the  mort- 
gagor, it  was  held  to  be  a  fixture.  In  the  light  of  these  cases,  and 
many  others  which  we  have  examined,  we  do  not  regard  the  fact, 
that  the  building  in  question  was  erected  as  a  temporary  building, 
and  with  an  intention  of  ultimate  removal,  at  all  decisive  as  to 
whether  it  became  a  part  of  the  realty  or  not. 

The  manner  in  which  a  building  is  placed  upon  land,  whether  upon 
wooden  posts,  or  a  rock,  or  brick  foundation,  does  not  determine  its 
character.  As  was  said  by  Parker,  J.,  in  Sncdeker  v.  Warring,  above 
cited:  "  A  thing  may  be  as  firmly  fixed  to  the  land  by  gravitation 
as  by  clamps  or  cement.  Its  character  may  depend  upon  the  object 
of  its  erection."  In  Teaff  v.  Hewett,  1  Ohio  St.  511,  it  was  held 
that:  '  The  intention  of  the  party  making  the  annexation  to  make 
the  article  a  permanent  accession  to  the  freehold,  this  intention  to 
be  inferred  from  the  nature  of  the  article  affixed,  the  relation  and 
situation  of  the  party  making  the  annexation,  the  structure  and  mode 
of  annexation  and  the  purpose  and  use  for  which  the  annexation  has 
been  made,"  is  a  controlling  circumstance  in  determining  whether 
the  structure  is  to  be  regarded  as  a  fixture  or  not.  In  the  case  of 
Benjamin  F.  Butler,  Adm.  v.  Page,  7  Met.  42,  Shaw,  C.  J.,  delivering 


282      CONSTITUENTS    AND    INCIDENTS    OF   LAND.       [PT.  II.  CH.  1 

the  opinion  of  the  court,  said:  "  All  buildings  erected  and  fixtures 
placed  on  mortgaged  premises  by  the  mortgagor,  must  be  regarded 
as  permanently  annexed  to  the  freehold.  They  go  to  enhance  the 
value  of  the  estate,  and  will,  therefore,  inure  to  the  benefit  of  the 
mortgagee  so  far  as  they  increase  his  security  for  his  debt,  and  to 
the  same  extent  they  enhance  the  value  of  the  equity  of  redemption, 
and  thereby  inure  to  the  benefit  of  the  mortgagor."  In  contro- 
versies between  mortgagor  and  mortgagee  the  rule  is  more  favorable 
to  the  mortgagee  in  relation  to  fixtures  than  that  which  is  applied  as 
between  landlord  and  tenant,  and,  applying  the  principles  announced 
in  the  cases  which  we  have  cited,  which  we  believe  to  be  sound  and 
salutary,  we  must  hold  that  the  building  in  question  was  a  part  of 
the  realty,  and  that  neither  the  mortgagor,  nor  the  purchaser  from 
him  has  a  right  to  remove  it.  It  becomes  a  part  of  the  plaintiff's 
security  for  its  debt. 

The  remaining  question  is,  did  the  facts  alleged  in  the  petition 
warrant  the  court  in  restraining  the  parties  by  injunction  from 
removing  the  budding.  It  is  not  essential  that  the  injury  threatened 
shall  be  irreparable,  to  warrant  a  resort  to  the  remedy  by  injunction. 
Our  statute  provides,  sec.  24,  page  1032,  Wag.  Stat.,  that  "  the 
remedy  by  writ  of  injunction  shall  exist  in  all  cases,  when  an  injury 
to  real  or  personal  property  is  threatened,  and  to  prevent  the  doing  of 
any  legal  wrong  whatever,  whenever  in  the  opinion  of  the  court,  an 
adequate  remedy  cannot  be  afforded  by  an  action  for  damages." 
AVould  an  action  for  damages  here  have  afforded  an  adequate  remedy, 
is  *the  question,  and  not  whether  the  threatened  injury  would  have 
been  irreparable.  The  building  was  erected  to  be  used  in  connection 
with,  and  as  an  office,  for  the  mill.  It  was  erected  to  supply  the 
place  of  an  office  formerly  used,  which  had  been  appropriated  to 
another  purpose.  Its  immediate  and  constant  use  was  of  importance 
to  the  milling  business.  The  value  of  the  building  which  a  jury 
might  have  given  as  damages  would  not  have  been  sufficient  com- 
pensation to  the  owner  for  its  removal.  The  defendant  Allen  may 
have  been  solvent,  amply  able  to  respond  in  damages  for  his  tres- 
pass, but  it  does  not  therefore  follow  that  he  could  not  be  restrained 
from  severing  from  the  land  a  house  which  belonged,  not  to  him> 
but  to  the  owner  of  the  land.  If  a  man  of  large  fortune,  so  wealthy 
as  to  place  beyond  a  doubt  his  ability  to  pay  any  damages  which 
might  be  assessed  to  me  for  his  trespass,  should  determine  and 
threaten  to  tear  down  my  dwelling  over  my  head,  will  it  be  said  that 
a  1  'Hut  of  equity  would  be  powerless  to  restrain  him  from  executing 
his  threats  and  that  1  would  have  no  remedy  but  to  suffer  the 
wrong  and   sue   for  damages?     There  are  inconveniences  and  per- 


V.   5-]  FIXTURES:     BY     DESTINATION.  283 

plexities  to  which  one  may  be  subjected  by  a  trespass  such  as  we  are 
considering,  for  which  a  jury  could  not,  under  the  rules  of  law,  fully 
compensate  him,  and  we  think  the  provision  of  our  statute  broad 
enough,  however  the  law  may  have  been  before  its  enactment,  to 
authorize  a  resort  to  injunction  proceedings  in  such  cases.  The 
judgment  of  the  Circuit  Court  is  affirmed. 

Affirmed. 


(2.)  How  the  "  Reasonably  Presumable  Intent"  in  Annexing  is 
Ascertained. 

(a.)  From  the  nature  of  the  chattel  annexed} 

(o  )  From  the  mode  and  degree  of  annexation.'1 

(c.)  From  the  apparent  appropriation  of  the  chattel  to  the  use  or  purpose 
of  that  part  of  the  realty  with  which  it  is  connected.3 

(d.)  From  the  relation  of  the  annexor  to  the  chattel  and  to  the  land} 


4.  The  Apparent  Appropriation  of  the  Chattel  to  the  Use  or 
Purpose  of  that  Part  of  the  Realty  With  Which  it  is 
Connected.     Fixtures  by  Destination. 

VOORHIS  v.  FREEMAN. 
2  Watts  and  Sergeant  (Pa.),  116.  —  1841. 
{Reported  herein  at  p.  224. ]5 


5.  The  Relation  of  the  Annexor  to  the  Chattel  and  the 
Land  as  Bearing  on  the  ''  Reasonably  Presumable  Intent  " 
in  Annexing. 

A.    The  chattel-owner  has  no  interest  in  the  land. 

a.    The  chattel-owner  is  annexor. 

(1.)  He  Annexes  without  License  of,  or  Agreement  with,  Landowner. 

RITCHMYER  v.  morss. 

3  Keyes  (N.  Y.),  349.  —  1867. 

Davies,  Ch.  J.  —  The  plaintiff  claims  in  this  action  to  recover  the 
value  of  a  certain  building  located  upon  the  lands  of  the  defendants, 

'See  supra  et  infra,  passim.  3  See  p.  283,  infra. 

2  See  p.  234,  supra.  4  See  p.  283,  infra. 

5  See  also  Snedeker  v.  Warring,  p.  231,  supra,  and  Farrar  v.  Stackpole,  p.  227, 
supra,  and  compare  McKeage  v.  Insurance  Co.,  p.  245,  supra,  and  Hoyle  v.  R. 
R.  Co.,  p.  248,  supra. —  Ed. 


284      CONSTITUENTS   AND    INCIDENTS    OF   LAND.      [PT.  II.   CH.  II. 

which  he  claims  as  owner,  and  which  was  taken  possession  of  and 
removed  by  defendants.  The  building  was  erected  by  one  Vroman 
in  the  fall  of  1849,  at  which  time  the  land  upon  which  it  was  erected 
was  owned  by  Alonzo  C.  Paige  and  others.  It  was  a  good  frame 
building,  as  described  by  the  plaintiff,  fifteen  by  sixteen  feet,  ten  feet 
posts,  nicely  inclosed  with  pine  siding,  pine  shingles,  a  good  cornice 
on  one  end>  painted  white,  with  two  coats;  one  door  outside  and 
one  inside;  two  windows,  one  in  the  front  end  and  one  in  the  side, 
and  a  window  in  the  back  end;  there  was  a  partition  in  it  lathed  and 
plastered,  counter  and  shelves  in  the  front  part  of  the  building.  The 
building  stood  on  a  foundation  of  loose  stones,  with  a  back  chimney 
in  it.  The  plaintiff  purchased  it  on  the  21st  of  November,  1859, 
having  previously  occupied  it  for  six  years.  The  defendants  removed 
it  in  December,  i860.  The  plaintiff  testified  he  did  not  know  by 
whose  authority  the  shop  was  built  there;  did  not  know  for  whose 
benefit  Vroman  built  it;  he  did  not  know  that  Vroman  occupied  as 
tenant  of  anybody  when  he  erected  the  building. 

The  defendants  then  proved  that  on  the  16th  day  of  June,  i860, 
they  entered  into  a  written  contract  with  Paige  and  Potter,  then  the 
owners  of  the  land  upon  which  said  building  was  located,  and  agreed 
to  pay  therefor  the  sum  of  $2,500,  on  the  execution  of  a  good  and 
sufficient  deed  therefor,  and  that  the  defendants  took  possession  of 
said  land  under  said  contract.  That  they  were  in  possession  under 
that  contract  at  the  time  the  shop  was  removed;  that  there  were 
several  other  buildings  on  this  lot  at  the  time  they  bought,  and  the 
defendants  took  possession  of  the  whole  lot  and  all  the  buildings, 
including  this  shop;  that  the  defendants  subsequently  received  a 
deed  for  said  premises  pursuant  to  the  terms  of  their  contract;  that 
the  defendants  have  occupied  all  the  premises  since  the  contract  to 
them. 

The  judge  charged  the  jury  that  as  matter  of  law  the  plaintiff  was 
entitled  to  recover,  to  which  charge  the  counsel  for  the  defendants 
then  and  there  duly  excepted.  The  judge  further  charged  that  the 
only  question  for  the  jury  to  consider  was  the  question  of  damages, 
and  to  this  the  defendants  also  excepted. 

I  think  the  learned  judge  at  the  circuit  was  in  error  in  holding  as 
a  matter  of  law  that  upon  this  testimony  the  plaintiff  was  entitled  to 
recover.  That  testimony  showed,  in  brief,  that  the  plaintiff  had 
be<  ome  the  purchaser  of  a  building  erected  upon  land  owned  by  the 
defendants,  and  that  the  defendants  had  taken  possession  of  the 
building  and  removed  it,  as  they  clearly  had  a  right  to  do  if  it  was 
attached  to  the  freehold  and  passed  under  the  contract  and  convey- 
ance  to  them.     That  it  did  so  pass  is  establishedby  authority.     Mott 


V.  5.]  FIXTURES:    ANNEXER   STRANGER   TO    LAND.  285 

v.  Palmer,  1  N.  Y.  564.  In  that  case  Judge  Bronson  said:  '  The 
word  '  land  '  includes  not  only  the  soil  but  everything  attached  to 
it,  whether  attached  by  the  course  of  nature,  as  trees,  herbage  and 
water,  or  by  the  hand  of  man,  as  buildings  and  fences.  This  is  but 
common  learning,  and  there  is  no  more  room  for  question  that  a 
grant  of  land,  eo  nomine,  will  carry  buildings  and  fences  than  there 
is  that  it  will  carry  growing  trees  and  herbage  upon  or  mines  and 
quarries  in  the  ground." 

The  cases  relied  upon  to  take  this  case  out  of  this  well-recognized 
and  firmly  established  rule  of  law  do  not  apply  to  the  facts  as 
proven  on  the  trial  of  this  action.  In  the  first  place,  it  was  not 
established  that  this  building  was  erected  upon  any  agreement 
between  Vroman  and  the  then  owners  of  the  fee  of  the  land  that  it 
was  to  be  considered  strictly  a  personal  chattel.  Second,  it  was  not 
proven  that  the  building  was  erected  by  a  tenant  for  the  purposes  of 
his  trade  and  business,  or  that  the  relation  of  landlord  and  tenant 
ever  existed  between  Vroman  and  the  defendant's  grantors,  or 
between  them  and  the  plaintiff.  The  first  proposition  was  necessary 
to  establish  to  make  applicable  the  doctrine  of  the  case  of  Smith  v. 
Benson,  1  Hill,  176.  In  that  case,  Cowen,  J.,  said:  "There  both 
parties  agreed  to  consider  it  (the  building  in  question)  as  in  a  state 
of  severance  from  the  freehold,  and  no  one  had  ever  thought  of  its 
being  so  fixed  as  to  be  irremovable.  Prima  facie,  such  a  building 
would  be  a  fixture  and  irremovable.  The  legal  effect  of  putting  it 
on  another's  land  would  be  to  make  it  a  part  of  the  freehold.  But 
the  parties  concerned  may  control  the  legal  effect  of  any  transaction 
between  them  by  an  express  agreement.  They  have  in  effect  stipu- 
lated that  the  placing  this  building  on  the  ground  should  work  noth- 
ing more  toward  changing  its  nature  than  if  it  had  been  the  loose 
timber  of  the  house,  instead  of  the  house  itself.  The  law  often 
implies  an  agreement  of  nearly  the  same  character  from  the  relation 
of  lessor  and  lessee,  or  tenant  and  remainder-man.  And  surely  the 
parties  may,  by  express  agreement,  do  the  same  thing  and  even 
more."  Equally  inapplicable  is  the  doctrine  of  Ombony  v.  Jones  (ubi 
supra),  as  the  second  proposition  above  stated  was  not  established 
by  proof. 

The  rule  to  be  gathered  from  the  cases  is  then  stated  thus  by 
Judge  Grover:  "  That  the  tenant  may  remove  during  his  term  all 
erections  made  by  him  for  the  purpose  of  trade  that  can  be  removed 
without  injury  to  the  land  or  something  attached  thereto."  But  in 
the  case  at  bar  no  tenant  sought  to  exercise  any  such  right  during 
his  term.  There  is  an  utter  failure  to  establish  the  first  foundation 
for  invoking  the  aid  of  such  a  principle,  viz.,  that  the  relation  of 


286      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

tenant  at  any  time  existed.  When  that  fact  was  proven,  it  then 
would  have  become  needful  to  show  that  the  building  in  question 
was  erected  by  the  tenant  for  the  purposes  of  trade  or  his  business, 
and  that  he  exercised  his  right  of  removal  during  his  term. 

Upon  the  facts  proven  on  this  trial,  there  can  be  no  doubt  that 
the  defendants  were  the  owners  of  the  building  in  controversy,  and 
it  follows  that  the  plaintiff  is  not  entitled  to  recover  its  value.  The 
learned  judge  erred  in  charging  the  jury  that  as  a  matter  of  law  upon 
the  facts  proven,  the  plaintiff  was  entitled  to  recover.  The  judgment 
must  be  reversed  and  a  new  trial  ordered,  costs  to  abide  the  event.1 


(2.)  Chattel-owner  Has  License  of,  or  Agreement  with  Landowner. 

MOTT  v.  PALMER. 

1  New  York,  564.  —  1848. 

Action  for  breach  of  covenant  of  seisin.  Judgment  below  for 
plaintiff  (Palmer.)     Mott  appeals.     The  opinion  states  the  facts. 

Ruggles,  J.  —  In  December,  1841,  Mott  conveyed  to  Palmer  a 
farm  of  land  in  Columbia  county,  by  a  deed  containing  the  following 
covenant: 

"  And  the  said  Philander  Mott  doth  hereby  covenant  and  agree 
that  at  the  delivery  hereof  he  is  the  lawful  owner  of  the  premises 
above  granted,  and  seized  of  a  good  and  indefeasible  estate  of 
inheritance  therein  clear  of  all  incumbrance." 

This  action  was  brought  by  Palmer,  the  grantee,  on  the  covenant 
in  the  deed,  to  recover  the  value  of  a  rail  fence  which  stood  on  the 
land  when  the  deed  was  executed,  but  which  did  not  belong  to  Mott, 
the  grantor.  The  facts  were,  that  the  fence  was  erected  on  Mott's 
land  in  1840  by  one  Brown,  (who  owned  the  adjoining  land,)  under 
an  agreement  between  him  and  Mott,  by  which  Brown  was  to  fence 
in,  temporarily,  a  part  of  Mott's  land  with  his  own,  and  to  cut  and 
tike  away  the  grass  growing  on  Mott's  land,  with  leave  to  take  away 
the  fence  whenever  he  liked.  After  Mott  conveyed  to  Palmer  the 
land  on  which  the  fence  stood,  Palmer  removed  the  fence  and  con- 
verteil  it  to  his  own  use.      Brown  thereupon  sued  him  before  a  jus- 

1  PARKER,  J.,  in  a  concurring  opinion  says,  with  regard  to  this  building: 
"  It  is  undisputed  that  Vroman,  who  built  it,  was  not  the  owner  of  the  land  on 
which  it  was  built,  either  in  fee  or  as  tenant  for  life  or  for  years;  nor  is  there 
any  evidence  tending  to  show  that  he  built  it  pursuant  to  any  agreement  or 
itanding  whatever  with  the  owner  of  the  land.  So  far  as  appears,  he  was 
a  trespasser  in  erecting  it  upon  the  land  where  it  was  placed." — Ed. 


V.  5.]  FIXTURES:     ANNEXER    HAS    LICENSE.  287 

tice  for  the  fence  and  recovered,  Mott  being  a  witness  on  that  trial 
against  Palmer.  Although  the  evidence  to  prove  these  facts  was  at 
first  offered  by  Palmer  on  the  trial  of  this  cause  in  the  court  below 
and  rejected  by  the  court,  it  was  afterwards  given  by  the  defendant 
Mott. 

The  question  now  is  whether  in  this  action  brought  by  Palmer,  the 
grantee,  against  Mott,  his  grantor,  on  the  covenant  of  ownership  and 
seisin  in  the  deed,  Palmer  is  entitled  to  recover  the  value  of  the 
fence.  A  grantor  who  executes  a  conveyance  of  land  undertakes  to 
convey  everything  described  in  his  deed;  and  by  a  covenant  of  seisin 
he  assumes  to  be  the  owner  of  all  he  undertakes  to  convey.  The 
deed  in  question  purported  to  "  grant  and  convey  all  that  certain  lot 
or  farm  of  land  situate  in  the  town  of  Chatham,  county  of  Columbia, 
bounded,  etc.,  with  the  appurtenances,"  etc.  The  word  land,  when 
used  in  a  deed,  includes  not  only  the  naked  earth,  but  everything 
within  it  and  the  buildings,  trees,  fixtures  and  fences  upon  it.  Good- 
rich v.  Jones,  2  Hill,  143;  Walker  v.  Sherman,  20  Wend.  639,  640, 
646;  Green  v.  Armstrong,  1  Denio,  554;  Com.  Dig.  Grant,  E. ;  Co. 
Litt.  4a;  2  Roll.  265.  A  deed  passes  all  the  incidents  to  the  land  as 
well  as  the  land  itself,  and  as  well  when  they  are  not  expressed  as 
when  they  are.  Fixtures  belonging  to  the  owner  of  the  land,  being 
part  of  the  land,  cannot  be  reserved  by  parol  when  the  land  is  con- 
veyed; the  deed  conveys  them  to  the  grantee  unless  the  reservation 
be  in  writing.  Noble  v.  Bosworth,  19  Pick.  314.  If  the  fence  had 
belonged  to  Mott  it  would  have  passed  by  his  deed;  not  by  force  of 
the  word  appurtenances  contained  in  the  deed,  but  without  that 
word,  and  as  part  of  the  land.  Trees,  buildings,  fixtures,  and  fences 
on  a  farm  are  corporeal  in  their  nature,  and  the  subject  of  seisin, 
like  the  land  itself,  of  which  they  are  regarded  in  the  law  as  a  part. 
Fences  are  perishable  by  the  effect  of  time,  and  so  are  trees  and 
houses;  but  indestructibility  is  not  one  of  the  essential  attributes  of 
real  estate.  Fences  are  not  only  indispensable  to  the  enjoyment  of 
real  estate,  but  they  are,  in  their  nature,  real  estate  to  the  same 
extent  that  houses  and  other  structures  on  the  land  are  so.  A  rail, 
before  it  is  used  in  the  construction  of  a  fence,  is  personal  property, 
and  so  is  a  loose  timber  before  it  is  used  in  the  construction  of  a 
house.  When  either  is  applied  to  its  appropriate  use  in  building  a 
fence  or  a  house,  its  legal  nature  is  changed.  It  becomes  real  estate, 
and  is  governed  by  the  law  which  regulates  land,  descending  to  the 
heir  as  part  of  the  inheritance,  and  passing  by  a  deed  as  part  of  the 
freehold.  A  fence  may  be  easily  detached  from  the  earth,  but  not 
more  easily  than  the  stones  which  lie  on  its  surface,  and  both  are 
part  of  the  land,  and  therefore  it  is  that  a  building  or  fence  belc 


288       CONSTITUENTS    AND    INCIDENTS    OF    LAND.       [PT.  II.   CIL  II. 

ing  to  the  owner  of  the  land  will  pass  by  his  deed  of  the  land  without 
being  expressed  or  designated  as  part  of  the  thing  granted. 

But  the  earth  within  specified  boundary  lines  may  be  owned  by  one 
man,  and  the  buildings,  trees  and  fences  standing  on  it  by  another. 
A  man  may  have  an  inheritance  in  an  upper  chamber,  although  the 
title  to  the  lower  buildings  and  soil  be  in  another.  Shep.  Touch. 
206;  1  Inst.  4Sb.  And  it  is  a  corporeal  inheritance.  10  Vin.  202. 
Buildings  and  fixtures  erected  by  a  tenant  for  the  purposes  of  trade 
belong  to  him,  and  are  removable  without  the  consent  of  his  land- 
lord. Holmes  v.  Tremper,  20  Johns.  30;  Miller  v.  Plumb,  6  Cowen, 
665 ;  Doty  v.  Gorhamt  5  Pick.  489.  Herlakenden  s  Case \  4  Co.  R.  63, 
affords  an  instance  in  which  one  man  owned  the  land  and  another 
the  growing  trees  upon  it.  In  Rogers  v.  Woodbury,  15  Pick.  156,  Put- 
nam, J.,  in  speaking  of  a  house  which  a  man  had  erected  on  land 
which  did  not  belong  to  him,  said  "  it  might  or  might  not  be  parcel 
of  the  realty.  If  the  owner  of  the  land  owned  the  building,  it  would 
be  so.  If  he  did  not,  and  the  owner  of  the  building  had  no  interest 
in  the  land,  the  building  would  be  personal  property."  Smith  v. 
Benson,  1  Hill,  176,  was  the  case  of  a  dwelling-house  and  grocery 
belonging  to  one  man,  although  standing  on  the  land  of  another;  and 
in  Russell 'v.  Richard,  1  Fairf.  431,  the  owner  of  land  on  which  another 
man  had  erected  a  saw-mill  by  his  consent,  executed  a  deed  for  the 
land  and  the  mill,  bat  it  was  held  that  the  conveyance  passed  no 
title  to  the  mill,  because  it  was  the  property  of  him  who  built  it. 
The  conclusion  derived  from  these  cases  against  the  plaintiff's  right 
of  recovery  on  the  covenant  is,  that  the  defendant's  deed  purports 
to  be  a  grant  of  real  estate  only,  and  the  fence  in  question  being 
personal  property  was  not  a  part  of  the  premises  granted,  and  there- 
fore not  within  the  scope  of  the  covenant  which  relates  to  the  realty 
only. 

If  this  be  a  sound  conclusion,  a  grantor  could  not  be  made  liable 
on  the  covenants  in  his  deed,  although  he  had  previously  and  pri- 
vately sold,  with  a  view  to  removal,  all  the  houses,  buildings,  mills, 
fences,  and  growing  timber  on  the  land  conveyed.  Indeed,  if  this 
doctrine  prevails,  the  gravel,  clay,  stone  and  loam  might  also  be 
converted  into  personal  property  by  such  a  sale,  and  carried  off  the 
land,  without  violating  the  grantor's  covenant.  Let  us  test  the  cor- 
rectness of  this  conclusion  in  a  few  words.  It  is  true  the  fence  in 
one  sense  was  not  a  part  of  the  thing  granted.  It  did  not  pass  by 
the  deed.  In  the  same  sense,  if  some  stranger  had  been  the  owner 
of  one-half  the  farm,  that  half  would  not  have  been  part  of  the  thing 
granted,  because  it  would  not  have  passed  by  the  deed.  But  the 
e   was  within  the  description  of  the  thing  granted  as  clearly  as 


V.  5-]  FIXTURES:     ANNEXER    HAS    LICENSE.  289 

the  land  itself;  and  being  witnin  the  description,  it  was  a  part  of 
that  which  the  deed  purported  to  convey,  and  of  which  the  grantor 
covenanted  that  he  was  the  owner.  If  it  be  yet  doubted  whether  the 
fence  (being  in  fact  the  personal  property  of  Brown)  was  within  the 
description  of  what  the  grantor  professed  to  convey,  that  doubt  can 
be  solved  in  a  moment  by  reflecting  that  it  would  undeniably  have 
passed  by  the  deed  if  the  grantor  had  been  the  owner  of  it;  although 
it  could  not  have  so  passed  if  it  had  not  been  within  the  description. 

It  all  comes  to  this:  The  grantor  undertook  to  convey  it  as  part 
of  the  realty  by  a  deed  which  would  have  been  effectual  for  that  pur- 
pose if  he  had  been  the  owner  of  it,  as  by  deed  he  professed  to  be, 
but  was  not.  It  is  therefore  a  case  in  which  the  covenant  of  seisin 
affords  a  remedy;  and  although  the  amount  in  controversy  is  trifling, 
the  right  is  clear;  and  it  seems  to  be  perfectly  just  that  the  grantor 
should  pay  for  the  fence,  because  there  is  nothing  in  the  case  to 
show  that  Palmer,  when  he  accepted  the  deed,  was  informed  by 
Mott  or  otherwise  knew  that  it  belonged  to  Brown. 

The  judgment  of  the  Supreme  Court  must  therefore  be  affirmed.1 


REESE  v.  JARED. 

15  Indiana,  142.  —  i860. 


Perkins,  J. — The  facts  in  this  case  are  substantially  these: 
Jared  employed  Reese  to  erect  a  house  on  a  certain  lot  of  ground, 
and  was  to  pay  him  therefor  by  conveying  to  him  a  certain  other  lot. 
Reese  was  to  furnish  the  materials. 

Reese  built  the  house,  and  then  discovered  that  in  the  agreement 
under  which  it  was  built,  there  were  mistakes  in  the  numbers  of  the 
lots  to  be  built  upon,  and  to  be  taken  in  payment.  Reese,  appre- 
hending loss  to  himself,  and  with  a  view  to  prevent  it  sold,  while  yet 
in  possession  thereof,  the  house  he  had  erected  for  Jared,  to  one 
Schmall,  and  moved  it  on  to  a  lot  of  his,  placing  it  upon  a  permanent 
brick  foundation. 

Jared  then  sued  Reese  and  Schmall,  not  for  the  value  of  the  house, 
but  to  recover  possession  of  the  specific  article;  the  house  itself.  It 
does  not  appear  that  Schmall  was  aware  of  the  fact,  that  Reese  had 
no  right  to  sell  and  remove  the  house. 

When  the  lumber,  out  of  which  the  house  in  question  was  con- 
structed was  growing  in  the  tree,  it  was  real  estate.  While  at  the 
saw-mill,  in  the  log  and  lumber,  it  was  personal  estate.  When 
erected  into  a  house,  on  a  permanent  foundation,  on  Jared's  lot,  it 

1  See,  however,  Climer  v.  Wallace,  28  Missouri,  556.  —  1859. — Ed. 

LAW  OF  PROP.   IN  LAND  —  Ig 


29O      CONSTITUENTS    AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

became  real  estate  again.  When  traveling  on  rollers  from  Jared's 
to  Schmall's  lot,  it  became,  a  second  time,  personal  estate;  and 
when  fixed  on  a  permanent  foundation  on  Schmall's  lot,  it  returned 
again  to  its  original  character  of  real  estate.  Whose  real  estate? 
Kent  lays  down  that,  "  If  A.  builds  a  house,  with  his  own  materials, 
upon  the  land  of  B.,  the  land,  said  Pothier,  is  the  principal  subject, 
and  the  other  is  but  accessory;  for  the  land  can  subsist  without  the 
building,  but  the  building  cannot  subsist  without  the  land  on  which 
it  stands;  and,  therefore,  the  owner  of  the  land  acquired,  by  right 
or  accession,  the  property  in  the  building.  It  is  the  same  thing,  if 
A.  builds  a  house  on  his  own  land  with  the  materials  of  another;  for 
the  property  in  the  land  vests  the  property  in  the  building  by  right 
or  accession,  and  the  owner  of  the  land  would  only  be  obliged  (if 
bound  to  answer  at  all)  to  answer  to  the  owner  of  the  materials  for 
the  value  of  them."  2  Kent,  362.  He  further  says,  that  "  The 
English  law  will  not  allow  one  man  to  gain  a  title  to  the  property  of 
another  upon  the  principle  of  accession,  if  he  took  the  other's  prop- 
erty wilfully  as  a  trespasser."  Id.  363.  According  to  the  above 
quoted  authority,  the  recovery  in  this  case  should  have  been  the 
value  of  the  house,  not  the  house  itself;  and  as  the  jury,  in  their 
verdict,  did  not  find  the  value  of  the  house,  we  cannot  correct  the 
judgment  rendered,  for  want  of  data,  and  it  must  be  reversed. 


b.    The  landowner  annexes  the  chattel  of  another. 

LANSING  IRON  AND  ENGINE  WORKS  v.  WALKER. 

91  Michigan,  409.  —  1892. 

Trover  for  a  portable  saw-mill. 

Plaintiff  agreed  to  sell  to  one  Myers  a  portable  saw-mill,  title  and 
right  of  possession  of  same  to  remain  in  plaintiff  until  fully  paid  for; 

1  The  nature  of  the  chattel  and  the  mode  and  degree  of  its  annexation  may  be 
such  as  conclusively  to  change  its  legal  character  from  personal  to  real.  If  this 
is  not  the  case  then  (a)  the  chattel-owner  may  never  have  assented  to  part  with 
either  title  or  possession;  (b)  he  may  have  intended  to  part  with  possession,  but 
not  with  title,  as  in  bailment  or  conditional  sale;  (c)  he  may  have  acquired 
(technical)  title  from  the  landowner  by  chattel  mortgage  before  the  annexation. 

In  any  of  these  cases  (a,  b.  c,)  the  question  may  arise  between  the  chattel- 
owner  and  (1)  the  grantee  or  mortgagee  of  the  landowner,  or  (2)  the  execution 
creditor  of  the  landowner,  and  such  third  person  may  or  may  not  have  had 
ootji  e  of  1  hattel-owner's  title.  The  chattel  mortgage  may  or  may  not  have  been 
properly  filed  or  registered. 

Cases  where  landowner  has  sold  chattel  or  given  chattel-mortgage  thereon 
after  annexation  1  ome  under  bead  of  "  Severance,"  supra. 


V.   5-]  FIXTURES:    ANNEXER   HAS    LICENSE.  291 

Myers  to  have  possession  subject  to  proper  care  of  the  machinery 
and  compliance  with  the  terms  of  the  contract. 

Myers  set  up  the  mill  upon  a  farm  in  which  he  owned  an  undivided 
interest.  Thereupon  Myers  quit-claimed  the  farm  to  defendant 
Walker.  Verdict  and  judgment  below  for  plaintiff.  Defendant 
appeals. 

McGrath,  J.  (after  stating  facts).  —  The  case  is  ruled  by  Adams 
v.  Lee,  31   Mich.  440,  and  Robertson  v.  Corsett,  39  Id.  777. 

In  Adams  v.  Lee,  the  court  say:  "  All  the  time,  therefore,  the 
parties  have  had  title  to  the  machinery  distinct  from  their  title  to 
the  land,  and  this  fact  of  itself  is  conclusive  that  the  former  was  per- 
sonalty; for  to  constitute  a  fixture  there  must  not  only  be  physical 
annexation  in  some  form  to  the  realty,  but  there  must  be  unity  of 
title,  so  that  a  conveyance  of  the  realty  would  of  necessity  convey 
the  fixture  also.  When  the  ownership  of  the  land  is  in  one  person, 
and  of  the  thing  affixed  to  it  is  in  another,  and  in  its  nature  is 
capable  of  severance  without  injury  to  the  former,  the  latter  cannot, 
in  contemplation  of  law,  become  a  part  of  the  former,  but  must 
necessarily  remain  distinct  property,  to  be  used  and  dealt  with  as 
personal  estate  only.  And  the  fact  that  the  owner  of  the  thing 
affixed  to  the  freehold  has  also  an  undivided  interest  in  the  latter, 
cannot  render  the  former  a  fixture  when  the  interests  are  different 
in  extent.  A  thing  cannot,  as  to  an  undivided  interest  therein,  be 
real  estate,  and  as  to  another  undivided  interest  be  personalty.  It 
must  be  the  one  thing  or  the  other.  And  the  position  which  is 
taken  by  Lee  in  this  case  involves  this  absurdity:  That  Kaufman, 
at  the  time  when  he  and  Kinney  were  severally  the  owners  of  an 
undivided  half  of  the  land,  might  have  sold  that,  and,  as  a  necessary 
consequence,  transferred  an  undivided  one-half  of  the  machinery 
also,  though  the  whole  of  the  machinery  belonged  to  Kinney  as 
exclusive  owner.  This  would  be  the  necessary  result  if  the  machinery 
was  real  estate,  for  there  could  be  no  such  a  thing  as  attaching  it 
to  an  undivided  interest  in  the  land  only." 

In  Morrison  v.  Berry,  42  Mich.  389,  the  ownership  of  the  land  and 
of  the  thing  affixed  was  in  one  and  the  same  person.  It  was  there 
held  that  the  annexation  of  the  thing  to  the  freehold  was  not  the 
wrongful  act  of  the  landowner,  but  that,  by  act  and  intervention  of 
the  claimant,  the  article  became  a  part  of  the  freehold. 

In  Knowlton  v.  Johnson,  37  Mich.  47,  T.  owned  the  land  and  mill. 
S.  was  the  lessee.  The  water-wheels  were  a  part  of  the  structure. 
Plaintiffs  furnished  the  water-wheels  to  S.,  with  the  understanding 
that  they  were  to  be  put  in  the  mill,  and  there  used;  and,  against  the 
objection  of  T.,  the  old  wheels  were  taken  out  and  the  new  put  in. 


292      CONSTITUENTS   AND    INCIDENTS    OF    LAND.      [PT.  II.   CM.  II. 

Six  months  afterwards  S.  surrendered  his  lease,  and  T.  leased  to  M. 
T.  finally  sold  the  mill  property  to  defendant,  and  plaintiffs  brought 
trover.     The  court  say: 

"  The  plaintiff  deliberately  agreed  that  the  water-wheels  should  be 
converted  in  all  outward  appearance  into  real  property,  and  they 
thereby  put  it  in  the  power  of  Trimmer  to  make  sale  of  the  wheels 
as  part  of  the  mill." 

In  the  present  case  the  contract  of  sale  provided  for  the  use  of 
the  machinery,  not  only  in  the  township  of  Sandstone,  but  in  adjoin- 
ing townships.  Myers  was  not  the  sole  owner  of  the  land  upon 
which  it  was  placed,  but  he  was  sole  owner  of  the  interest  in  the 
machinery,  and  operated  it  solely  in  his  own  behalf.  The  structure 
covering  the  boiler  and  engine  was  but  a  temporary  one.  The 
machinery  in  question  did  not  consist  simply  of  a  pulley,  shaft,  or 
wheel  which  was  to  be  attached  to  other  machinery  already  a  part 
of  a  saw-mill,  and,  as  such,  a  part  of  the  realty,  but  it  was  a  com- 
plete outfit,  designed  by  the  agreement  to  be  portable.  There  was 
nothing  done  by  plaintiff  indicative  of  an  intent  to  permit  the 
machinery  to  be  so  annexed  to  realty  as  to  change  its  character. 
The  state  of  the  title  to  the  realty,  and  the  conduct  of  Myers  regard- 
ing the  machinery,  negatived  any  intent  on  his  part  to  allow  his 
interest  in  the  machinery  to  be  absorbed  by  the  owners  of  the  realty, 
or  to  permit  it  to  be  merged.  The  circumstances  of  the  purchase 
by  defendant  clearly  indicate  that  he  took  the  entire  interest  in  this 
machinery,  while  he  took  but  an  undivided  interest  in  the  realty. 
He  afterwards  operated  the  machinery  as  sole  owner. 

It  was  held  in  Wheeler  v.  Bedell,  40  Mich.  693,  696,  that  there  is 
no  universal  test  by  which  the  character  of  what  is  claimed  to  be  a 
fixture  can  be  determined  in  the  abstract;  neither  the  mode  of 
annexation  nor  the  manner  of  use  is  in  all  cases  conclusive.  It 
must  usually  depend  on  the  express  or  implied  understanding  of  the 
parties  concerned. 

In  Coleman  v.  Manufacturing  Co.,  38  Mich.  30,  40,  the  court,  com- 
menting upon  a  line  of  authorities  which  seem  to  regard  the  manner 
of  the  attachment  to  the  realty  as  the  test,  say: 

"  This,  however,  is  a  very  extreme  view,  and  is  hardly  compatible 
with  the  tenor  of  our  own  previous  decisions.  It  seems  to  overlook 
or  ignore  one  test,  and  frequently  the  most  important  test,  namely, 
the  intent  of  the  party  making  the  annexation."  See,  also,  Man- 
waring  v.  Jcnison,  61  Mich.  117. 

The  judgment  is  affirmed. 


V.  5-]  FIXTURES:    ANNEXER   HAS   LICENSE.  293 

TIFFT  v.  HORTON. 

53  New  York,  377.  —  1873. 

Action  to  recover  damages  for  alleged  conversion  of  a  boiler  and 
engine. 

Plaintiff  sold  a  Mrs.  Brown  an  engine  and  boiler  to  be  put  up  in 
the  latter's  elevator.  A  chattel  mortgage  was  given  for  the 
machinery  before  it  was  delivered.  There  was  a  clause  in  the 
chattel  mortgage  that  the  property  should  remain  personal  until 
paid  for,  notwithstanding  mode  of  annexation  in  elevator.  They 
were  then  affixed. 

Defendants  claim  title  under  their  real  estate  mortgages  executed 
by  Mrs.  Brown  before  the  engine  and  boiler  were  set  up  on  the 
premises.     Judgment  below  for  plaintiff.     Defendants  appeal. 

Folger,  J.  —  It  is  well  settled  that  chattels  may  be  annexed  to  the 
real  estate  and  still  retain  their  character  as  personal  property.  See 
Voorhees  v.  McGinnis,  48  N.  Y.  278,  and  cases  there  cited.  Of  the 
various  circumstances  which  may  determine  whether  in  any  case  this 
character  is  or  is  not  retained,  the  intention  with  which  they  are 
annexed  is  one;  and  if  the  intention  is,  that  they  shall  not  by  annex- 
ation become  a  part  of  the  freehold,  as  a  general  rule  they  will  not. 
The  limitation  to  this  is,  where  the  subject  or  mode  of  annexation 
is  such  as  that  the  attributes  of  personal  property  cannot  be  pre- 
dicated of  the  thing  in  controversy  (Fordx.  Cobb,  20  N.  Y.  344),  as 
where  the  property  could  not  be  removed  without  practically 
destroying,  or  where  it  or  part  of  it  is  essential  to  the  support  of 
that  to  which  it  is  attached.      Id. 

It  may  in  this  case  be  conceded,  that  if  there  were  no  fact  in  it 
but  the  placing  upon  the  premises  of  the  engine  and  boilers  in  the 
manner  in  which  they  were  attached  thereto,  they  would  have  become 
fixtures,  and  would  pass  as  a  part  of  the  realty.  But  the  agreement 
of  the  then  owner  of  the  land  and  the  plaintiff  is  express  that 
they  should  be  and  remain  personal  property  until  the  notes  given 
therefor  were  paid;  and  by  the  same  agreement,  power  was  given  to 
the  plaintiff,  to  enter  upon  the  premises  in  certain  contingencies, 
and  to  take  and  carry  them  away.  While  there  is  no  doubt  but  that 
the  intention  of  the  owner  of  the  land  was  that  the  engine  and 
boilers  should  ultimately  become  a  part  of  the  realty,  and  be  per- 
manently affixed  to  it,  this  was  subordinate  to  the  prior  intention 
expressed  by  the  agreement.  That  fully  shows  her  intention  and 
the  intention  of  the  plaintiffs,  that  the  act  of  annexing  them  to  the 
freehold,  should  not  change  or  take  away  the  character  of  them  as 


294      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

chattels,  until  the  price  of  them  had  been  fully  paid.  And  as  parties 
may  by  their  agreement,  expressing  their  intention  so  to  do,  preserve 
and  continue  the  character  of  the  chattels  as  personal  property, 
there  can  be  no  doubt  but  that  as  between  themselves,  the  agree- 
ment in  this  case  was  fully  sufficient  to  that  end. 

But  it  is  contended,  that  where  in  the  solution  of  this  question 
the  intention  is  a  criterion,  it  must  be  the  intention  of  all  those  who 
are  interested  in  the  land;  and  that  here  the  defendants,  prior  mort- 
gagees of  the  real  estate,  were  interested,  and  have  not  expressed  nor 
shown  such  intention.  It  is  not  to  be  denied,  that  as  a  general  rule 
all  fixtures  put  upon  the  land  by  the  owner  thereof,  whether  before 
or  after  the  execution  of  a  mortgage  upon  it,  become  subject  to 
the  lien  thereof.  Yet  I  do  not  think  that  the  prior  mortgagee  of 
the  realty  can  interpose,  before  foreclosure  and  sale,  to  prevent  the 
carrying  out  of  such  an  agreement  as  that  in  this  case.  Had  the 
mortgagees  taken  their  mortgage  upon  the  lands,  after  the  boilers 
and  engines  had  been  placed  thereon  under  this  agreement,  they 
would  have  had  no  right  to  prevent  the  removal  of  them  by  the 
plaintiff,  on  the  happening  of  the  contingencies  contemplated  by  it. 
The  rights  of  a  subsequent  mortgagee  are  no  greater  than  those 
of  a  subsequent  grantee,  and  he,  it  is  held,  cannot  claim  the  chattels 
thus  annexed,  and  must  seek  his  remedy  for  their  removal  by  virtue 
of  such  an  agreement,  upon  the  covenants  in  his  conveyance  of  the 
lands.     Molt  v.  Palmer,  i  N.  Y.  564,  and  see  Ford  v.  Cobb,  supra. 

A  prior  mortgagee,  who  certainly  has  not  been  induced  to  enter 
into  his  relation  to  the  lands  by  the  presence  thereon  of  the  chattels 
in  dispute  subsequently  annexed  thereto,  has  no  greater  right  than 
a  subsequent  mortgagee.  Neither  could  claim,  as  subject  to  the 
lien  of  his  mortgage,  personal  property  brought  onto  the  premises 
with  permission  of  the  owner  of  the  lands,  and  not  at  all  affixed 
thereto.  Nor  can  either  claim  personal  property  as  so  subject, 
from  the  mere  fact  of  the  affixing,  where,  by  the  express  agreement 
of  the  owner  of  the  fee  and  the  owner  of  the  chattel,  its  character 
as  personal  property  was  not  to  be  changed,  but  was  to  continue, 
and  it  to  be  subject  to  a  right  of  removal  by  the  owner  of  the 
chattel  on  failure  of  performance  of  conditions.  The  language  of 
the  authorities  is,  that  the  chattel  in  such  case  is  personal  property, 
for  which  an  action  of  trover  for  the  conversion  f  it  may  be  main- 
tained. Smith  v.  Benson,  1  Hill,  176;  Matt  v.  Palmer,  supra;  Farrar 
v.  Chauffetete,  5  Den.  527;  Ford  v.  Cobb,  supra. 

Another  consideration  makes  it  clear,  I  think,  that  in  this  case, 
the  absence  of  a  concurrent  intention  on  the  part  of  the  prior  mort- 
gagees is  of  no  weight.    As  above  stated,  as  a  general  rule,  all  fixtures 


V.  5-]  FIXTURES:    ANNEXER   HAS   LICENSE.  295 

put  upon  land  by  the  owner  thereof,  became  a  part  thereof, and  sub- 
ject to  the  lien  of  a  prior  mortgage;  but  sometimes  it  is  doubtful  if 
they  have  been  so  annexed  as  to  so  become.  And  then,  it  is  said,  the 
question  may  be  decided  by  the  presumed  intent  of  the  party  making 
the  annexation  of  the  chattels.  Winslow  v.  Mer.  Ins.  Co.,  4  Mete. 
306.  The  law  makes  a  presumption  in  the  case  of  any  one  making  such 
annexation,  and  it  is  different  as  the  interest  of  the  person  in  the  land 
is  different,  that  is,  whether  it  is  temporary  or  permanent.  The  law 
presumes  that  because  the  interest  of  a  tenant  in  the  land  is  tempo- 
rary, that  he  affixes  for  himself,  with  a  view  to  his  own  enjoyment 
during  his  term,  and  not  to  enhance  the  value  of  the  estate;  hence, 
it  permits  annexations  made  by  him  to  be  detached  during  his  term, 
if  done  without  injury  to  the  freehold,  and  in  agreement  with  known 
usages.  The  law  presumes  that  because  the  interest  of  the  vendor 
of  real  estate,  who  is  the  owner  of  it,  has  been  permanent,  that  he 
has  made  annexations,  for  himself  to  be  sure,  but  with  a  view  to  a 
lasting  enjoyment  of  his  estate,  and  for  its  continued  enhancement 
in  value.  So  the  mortgagor  of  land  is  the  owner  of  it,  and  has  a 
permanent  interest  therein,  and  the  law  presumes  that  improvements 
which  he  makes  thereon,  by  the  annexation  of  chattels,  he  makes  for 
himself,  for  prolonged  enjoyment,  and  to  enhance  permanently  the 
value  of  his  estate.  Winslow  v.  Mer.  Ins.  Co.,  supra.  These  are 
presumptions  of  the  intention  of  the  tenant  alone,  the  vendor  alone, 
and  of  the  mortgagor  alone;  nor  are  they  ordinarily  concerned  at 
all  with  the  relation  to  the  lands,  or  with  the  purpose  of  the  land- 
lord, or  the  vendee,  or  the  mortgagee,  though  there  may  be  cases  in 
which  the  intention  of  both  parties  may  be  of  effect,  as  where  a  mort- 
gagee has  loaned  money  with  the  understanding  that  it  shall  be 
applied  to  enhance  the  value  of  the  estate  by  the  addition  of  chattels 
in  such  manner.  And  they  are  but  presumptions,  which  in  all  cases 
may  be  entirely  done  away  with  by  the  facts.  Lancaster  v.  Eve,  5 
C.  B.  N.  S.  *7 17.  So  in  Elliott  v.  Bishop,  10  Exch.  *496;  s.  c.  in 
error,  11  Exch.  113,  it  is  recognized  that  the  express  agreement  of 
a  tenant  may  prevent  him  from  exercise  of  his  right  to  detach  his 
annexations;  which  is  the  same  as  to  say  that  his  agreement  having 
shown  that  it  was  not  his  intention  to  remove  them,  the  presumption 
of  contrary  purpose  which  would  otherwise  arise,  is  repelled.  So  in 
Potter  v.  Cromwell,  40  N.  Y.  287,  and  cases  cited,  it  is  conceded  that 
if  the  intention  of  the  vendor  of  lands  be  to  retain,  in  chattels 
annexed  thereto,  their  character  as  personal  property,  such  intention 
will  prevail.  So  in  Voorhees  v.  McGinnis,  supra,  it  is  conceded  that 
if  the  intention  of  the  mortgagor  of  lands  had  been  that  chattels 
annexed  were  to  be  removable,  the  prior  mortgagee  could  not  have 


2Cj6      CONSTITUENTS    AND    INCIDENTS    OF   LAND.      [PT.  II.   CH.  II. 

held  them  against  the  receiver  of  the  goods,  etc.,  of  the  mortgagor. 
See,  also,  Cranes.  Brigham.  n  N.  J.  Eq.  (3  Stockton),  29,  35;  Tcaff 
v.  Hewitt,  1  Ohio  St.  (McCook),  511-531.  The  general  rule  govern- 
ing the  right  of  parties  in  chattels  thus  annexed  to  the  real  estate 
rests,  as  it  appears,  upon  the  presumptions  which  the  law  makes  of 
what  their  purpose  is  in  the  act  of  annexation.  This  presumption 
grows  out  of  their  relation  to  and  interest  in  the  land,  and  not  from 
the  relation  or  interest  in  it  of  others  which  may  be  opposite.  And 
as  the  presumption  of  their  purpose  grows  alone  out  of  their  relation 
and  interest,  it  is  repelled  by  whatever  signifies  a  purpose  different; 
not  a  different  purpose  in  those  holding  a  relation  which  may  become 
hostile,  but  their  own  different  purpose.  Hence  I  conclude  that  the 
agreement  of  the  owner  of  the  land  with  the  plaintiffs,  as  it  did  fully 
express  their  distinct  purpose  that  these  annexations  of  boiler  and 
engines  should  not  make  them  a  part  of  the  real  estate,  was  suffi- 
cient to  that  effect  without  any  concurring  intention  of  the  defend- 
ants as  prior  mortgagees. 

Though  the  defendants  became  the  purchasers  of  the  land  on  the 
foreclosure  of  the  mortgages,  and  were  the  owners  of  it  in  fee,  and 
probably  in  actual  possession  of  it,  and  of  the  boilers  and  engines 
annexed  to  it,  before  this  action  was  brought  or  demand  made  of 
them  for  these  chattels,  yet  they  are  to  be  considered  in  this  case 
only  as  prior  mortgagees  of  it.  Such  is  the  effect  of  the  stipulation 
made  by  them  that  the  sale  upon  the  decrees  should  not  in  any 
manner  change  the  legal  rights  of  the  plaintiffs  in  this  action;  but 
for  this,  it  would  have  been  necessary  to  have  determined  the  effect 
upon  the  rights  of  the  parties  of  the  sale  on  foreclosure,  and  the 
change  of  title  and  possession  of  the  lands,  and  the  application  to 
that  state  of  facts  of  the  principle  laid  down  in  Lane  v.  King,  8  Wend. 
584,  and  kindred  cases. 

It  appears  that  the  boilers  and  engines  cannot  he  removed  without 
some  injury  to  the  walls  built  about  them,  and  which  are  a  part  of 
the  real  estate;  yet  this  fact  will  not  debar  the  plaintiffs.  The 
chattels  have  not  become  a  part  of  the  building;  the  remvoal  of 
them  will  not  take  away  or  destory  that  which  is  essential  to  the  sup- 
port of  the  main  building,  or  other  part  of  the  real  estate  to  which 
they  were  attached;  nor  will  it  destroy  or  of  necessity  injure  the 
chattels  themselves;  nor  will  the  injury  to  the  walls  about  them  be 
great  in  extent  or  amount.  So  that  the  limitation  hereinbefore  stated 
does  not  apply. 

It  is  proper  to  add,  that  the  English  case  cited  and  much  relied 
upon  by  the  defendants  has  not  been  overlooked.  Walmsley  v. 
Milne.  7  C.  B.  N.  S.  *  1 1 5 .      I  do  not  gather  from  it  that  the  decision 


V.  5-]  FIXTURES:    ANNEXER   HAS   LICENSE.  297 

was  placed  upon  the  ground  (as  the  defendants  claim),  that  the 
mortgagee  of  the  land  did  not  expect  or  understand  that  the  chattels 
annexed  were  removable  or  to  be  removed.  The  opinion  of  the 
court  seems  summed  up  in  the  concluding  sentence:  "We  think, 
therefore,  that  when  the  mortgagor  (who  was  the  real  owner  of  the 
inheritance),  after  the  date  of  the  mortgage,  annexed  the  fixtures 
in  question  for  a  permanent  purpose  and  for  the  better  enjoyment  of 
his  estate,  he  thereby  made  them  a  part  of  the  freehold  which  had 
been  vested  by  the  mortgage  deed  in  the  mortgagee."  It  is  to  be 
borne  in  mind,  too,  that  in  England  and  in  Massachusetts  the  rights 
of  a  mortgagee  of  land  in  the  mortgaged  premises  are  greater  than 
in  this  State.  He  is  regarded  as  the  owner  and  the  mortgagor  in  the 
light  of  a  tenant.  So  that  things  annexed  to  the  land  become  fixtures 
upon  the  land  of  the  mortgagee,  as  it  were.  See  case  last  cited, 
page  *i33;  Butler  v.  Page,  7  Mete.  40. 

The  judgment  should  be  affirmed,  with  costs  to  the  respondents. 


BINKLEY  v.  FORKNER. 

117  Indiana.  176.  —  1888. 


Suit  to  foreclose  a  chattel  mortgage. 

One  Kemper  purchased  a  parcel  of  real  estate,  giving  a  mortgage 
thereon  for  the  purchase  price.  He  had  already  bought  an  engine 
and  other  machinery  of  Hadley,  Wright  &  Co.,  to  be  used  on  the  land, 
and  given  this  chattel  mortgage  therefor,  agreeing  orally  that  the 
machinery  should  be  treated  as  personal  property  until  paid  for. 
The  machinery  was  then  annexed  to  the  premises,  but  it  appeared  in 
evidence  that  the  machinery  could  be  removed  without  material 
injury  to  the  building,  except  to  the  masonry  which  supported 
engine  and  boiler,  and  without  detriment  to  the  machinery,  and  that 
the  value  of  the  real  estate  would  not  be  appreciably  diminished 
otherwise  than  by  the  absence  of  the  machinery. 

Later  on  a  second  mortgage  was  placed  on  the  land  in  which  the 
mortgagor  also  mortgaged  and  warranted  all  machinery,  describing 
it,  and  provided  that  none  of  said  machinery  should  be  removed 
until  the  mortgage  should  be  paid.  All  the  mortgages  were  duly 
filed  or  recorded. 

Mitchell,  J.  —  *  *  *  The  controversy  here  is  between  the 
appellant,  Binkley,  the  assignee  of  the  notes  secured  by  the  chattel 
mortgage  to  Hadley,  Wright  &  Co.,  and  the  Eckarts  and  the  Dubois 
County  Bank,  who  were  made  parties  defendant  by  Binkley,  to  a  suit 


298      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

brought  in  the  Superior  Court  of  Marion  county  to  foreclose  the 
chattel  mortgage. 

On  the  one  hand  the  insistence  is,  that,  notwithstanding  the 
annexation  of  the  machinery  to  the  real  estate,  as  already  described, 
it  retained  the  character  of  personalty  in  consequence  of  the  prior 
chattel  mortgage,  and  the  contemporaneous  agreement  that  it  should 
be  treated  as  personal  property  until  the  notes  given  for  the  pur- 
chase price  to  Hadley,  Wright  &  Co.  had  been  paid. 

Admitting  that  Hadley,  Wright  &  Co.  held  a  valid  chattel  mort- 
gage upon  the  machinery  prior  to  its  annexation  to  the  realty,  the 
result  to  which  the  argument  leads,  on  the  other  hand,  is,  that, 
because  the  machinery  was  annexed  to  the  freehold  by  the  owner, 
and  was  peculiarly  adapted  to  be  used  in  connection  with  the  build- 
ing in  which  it  was  placed,  the  law  will  raise  a  conclusive  presump- 
tion that  the  owner  intended  it  as  a  permanent  accession  to  the  land. 
Hence  the  conclusion  insisted  upon  is,  the  character  of  the  machinery 
as  personal  property  came  to  an  end  when  it  was  annexed  to  the 
land,  and  that  of  realty  became  inevitably  fixed  upon  it. 

The  question  thus  presented  has  been  the  subject  of  much  discus- 
sion, and  the  result  deducible  from  the  reported  cases  is  not  in  every 
respect  harmonious,  or  of  so  definite  and  precise  a  character  as  could 
be  desired.  Very  much  depends  upon  the  relation  which  the  per- 
sons between  whom  the  question  arises  sustain  toward  each  other, 
whether  it  be  that  of  personal  representative  and  heir  of  a  deceased 
person,  landlord  and  tenant,  vendor  and  vendee,  mortgagor  and 
mortgagee  or  some  other,  which  may  give  a  peculiar  character  to 
the  case.  While  some  rules  of  general  application  have  been  for- 
mulated, in  the  very  nature  of  the  subject  each  case  must  in  some 
degree  be  controlled  by  the  varying  circumstances  peculiar  to  it. 

The  united  application  of  three  requisites  is  regarded  as  the  true 
criterion  of  an  immovable  fixture:  (1)  Real  or  constructive  annex- 
ation of  the  article  in  question  to  the  freehold.  (2)  Appropriation 
or  adaptation  to  the  use  or  purpose  of  that  part  of  the  realty  with 
which  it  is  connected.  (3)  The  intention  of  the  party  making  the 
annexation  to  make  the  article  a  permanent  accession  to  the  free- 
hold. Tcaff  v.  Hewitt,  iOhio  St.  511,  530;  Potter  v.  Cromwell,  40 
N.  Y.  287;  Ewell,  Fixtures,  21;  Tyler,  Fixtures,  114;  McRea  v. 
Central  Nafl  Bank,  66  N.  Y.  489. 

According  to  the  elementary  rule  of  the  common  law,  whatever 
is  annexed  to  the  freehold  becomes,  in  legal  contemplation,  a  part 
of  it,  and  is  thereafter  subject  to  the  same  incidents  and  conditions 
as  the  soil  itself.  But  the  diversity  of  trade  and  the  development  of 
manufactures   required   that  the   strict  rules  of  the  common  law  be 


V.   5-J  FIXTURES:    ANNEXER    HAS    LICENSE.  299 

measurably  relaxed,  and  it  may  now  be  said  that  the  nature  of  the 
articles  and  the  manner  in  which  they  are  affixed,  and  the  intention 
of  the  party  making  the  annexation,  together  with  the  policy  of  the 
law,  are  controlling  factors  in  determining  whether  an  article,  which 
may  or  may  not  be  a  fixture,  becomes  part  of  the  realty  by  being 
annexed  to  the  freehold.  The  purpose  or  intention  of  the  parties, 
the  effect  and  mode  of  annexation,  and  the  public  policy  in  relation 
thereto,  are  all  to  be  considered. 

When  the  parties  immediately  concerned,  by  an  agreement  between 
themselves,  manifest  their  purpose  that  the  property,  although  it  is 
to  be  annexed  to  the  soil,  shall  retain  its  character  as  personalty, 
then,  except  as  against  persons  who  occupy  the  relation  of  innocent 
purchasers  without  notice,  the  intention  of  the  parties  will  prevail, 
unless  the  property  be  of  such  a  nature  that  it  necessarily  becomes 
incorporated  into,  and  a  part  of,  the  realty  by  the  act  and  manner 
of  annexation.  Taylor  v.  Watkins,  62  Ind.  511;  Yater  v.  Mullen,  24 
Ind.  277. 

Thus,  if,  in  the  course  of  constructing  a  house,  brick  should  be 
placed  in  the  walls,  and  joists  and  beams  in  their  proper  places,  the 
brickmaker  and  sawyer  would  not  be  permitted  to  despoil  the  house 
by  asserting  an  agreement  with  the  owner  that  the  brick  and  beams 
were  to  retain  their  character  as  personalty  notwithstanding  their 
annexation.  In  such  a  case  the  mental  attitude  of  the  parties  cannot 
modify  the  legal  effect  resulting  from  the  annexation.  Campbell  v. 
Roddy  (N.  J.),  14  Atl.  Rep.  279;  Henkle  v.  Dillon,  17  Pac.  Rep.  148; 
Jones,  Chat.  Mortg.,  section   125. 

But  when  chattels  are  of  such  a  character  as  to  retain  their  identity 
and  distinctive  characteristics  after  annexation,  and  do  not  thereby 
become  an  essential  part  of  the  building,  so  that  the  removal  of  the 
chattels  will  not  materially  injure  the  building,  nor  destroy  or 
unnecessarily  impair  the  value  of  the  chattels,  a  mutual  agreement 
in  respect  to  the  manner  in  which  the  chattels  shall  be  regarded 
after  annexation  will  have  the  effect  to  preserve  the  personal 
character  of  the  property  between  the  parties  to  the  agreement. 
Rogers  v.  Cox,  96  Ind.  157;  Price  v.  Malott,  85  Ind.  266;  Hendy  v. 
Dinkerhoff,  57  Cal.  3;  Haven  v.  Emery,  ■$$  N.  H.  66;  Ewell,  Fixtures, 
66;  Malott  v.  Price,  109  Ind.  22. 

Accordingly,  the  proposition  is  well  sustained  that  one  who  pur- 
chases machinery  with  a  view  that  it  shall  be  annexed  to,  or  placed 
in,  a  building  of  which  he  is  the  owner,  and  who  executes  a  chattel 
mortgage  on  the  property  so  purchased,  thereby  evinces  his  intention 
that  the  property  shall  retain  its  character  as  personalty,  regardless 
of  the  manner  in  which  it  may  be  annexed  to  the  freehold.     Eaves 


300      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

v.  Estes,  10  Kan.  314;  Ford  v.  Cobb,  20  N.  Y.  344;  Sisson  v.  Hibbard, 
75  N.  Y.  542;  Tifft  v.  Horton,$$  N.  Y.  377;  Campbells!.  Roddy,  supra; 
Henkle  v.  Dillon,  supra. 

Except  where  the  rights  of  innocent  purchasers  are  involved,  it  is 
the  policy  of  the  law  to  uphold  such  contracts  in  the  interest  of 
trade. 

The  execution  of  a  chattel  mortgage  by  the  owner  of  the  land, 
upon  machinery  which  he  afterwards  places  in  a  building  thereon,  is 
regarded  as  an  unequivocal  declaration  of  his  intention  that  the  act 
of  annexation  shall  not  change  or  take  away  the  character  of  the 
machinery  as  personalty,  until  the  debt  secured  by  the  mortgage 
has  been  fully  paid.      Tifft  v.  Horton,  supra. 

A  provision  in  a  chattel  mortgage  that,  upon  default  of  payment 
of  the  mortgage  debt,  the  mortgagee  may  take  possession  of  the 
mortgaged  chattels  and  sell  the  same,  if  anything  beyond  the  mort- 
gage itself  was  needed,  is  equivalent  to  an  express  agreement  that 
the  property  shall  continue  to  be  regarded  as  personalty. 

Having  reached  the  conclusion  that,  when  the  nature  of  the  prop- 
erty admits  of  it,  parties  may  by  convention  fix  its  character  as  per- 
sonalty as  between  themselves,  after  it  is  annexed  to  the  freehold, 
and  that  a  chattel  mortgage,  such  as  the  one  under  consideration, 
is  equivalent  to  an  express  agreement  in  that  respect,  the  case 
would  be  of  easy  solution  but  for  the  intervention  of  the  rights  of 
others  than  the  immediate  parties  to  the  chattel  mortgage. 

It  remains  to  be  considered  whether  the  chattel  mortgage  from 
Kemper  to  Hadley,  Wright  &  Co.  was  effectual  to  preserve  the 
character  of  the  mortgaged  chattels  as  against  the  purchase-money 
mortgage  given  by  Kemper  to  Eckart  Bros.,  and  the  subsequent 
mortgage  to  the  bank.  What  are  the  rights  of  a  mortgagee  of 
chattels  of  the  description  of  those  in  question,  who  consents  that 
the  mortgaged  property  may  be  taken  out  of  the  county  in  which  his 
mortgage  is  recorded,  and  that  it  may  be  annexed  to  real  estate  in 
such  a  mariner  as  that,  in  the  absence  of  an  agreement  or  intention 
to  the  contrary,  the  act  of  annexation,  ipso  facto,  makes  the  prop- 
erty accessory  to  the  freehold? 

In  some  jurisdictions,  as  will  appear  from  the  authorities  already 
cited,  the  rule  seems  to  be  that  an  agreement  between  the  owner  of 
land  and  the  vendor  of  chattels,  which  are  to  be  annexed  thereto, 
concerning  the  character  of  the  chattels,  is  valid,  not  only  between 
the  parties,  and  against  a  prior  mortgagee  of  the  land,  but  also 
against  a  subsequent  mortgagee  or  purchaser  without  notice,  while 
in  others  an  essentially  different  effect  is  attributed  to  such  an  agree- 
ment.     Thus,   in    Tifft  v.    Horton,  supra,  and  Ford  v.  Cobb,  supra,  it 


V.  5-]  FIXTURES:    ANNEXER    HAS    LICENSE.  301 

was  held  by  the  Court  of  Appeals,  in  the  State  of  New  York,  that 
neither  a  precedent  nor  subsequent  mortgagee  of  real  estate  could 
defeat  the  claim  of  one  holding  a  chattel  mortgage  upon  property 
which  had  been  annexed  to  the  mortgaged  premises  under  an  agree- 
ment that  it  should  continue  to  be  regarded  as  personalty. 

These  cases  hold  that  the  agreement  between  the  holder  of  the 
chattel  mortgage  and  the  owner  of  the  land,  that  the  chattels  shall 
retain  their  character  as  personalty,  rebuts  the  presumption  that 
they  were  intended  as  permanent  accessories  to  the  land,  and  binds 
both  prior  and  subsequent  mortgagees. 

In  Pierce  v.  George,  108  Mass.  78,  a  chattel  mortgage  was  taken 
upon  certain  machinery  in  contemplation  that  the  machinery  was  to 
be  fastened  to  a  building  and  annexed  to  real  property  owned  by 
the  mortgagor,  and  it  was  held  that  a  subsequent  mortgagee  of  the 
real  estate  could  hold  the  chattels  as  a  part  of  the  land.  So  it  was 
held  by  the  same  court,  in  Hunt  v.  Bay  State  Iron  Co.,  97  Mass.  279, 
that  an  agreement  between  the  owner  of  iron  rails  and  a  railroad 
company,  that  the  rails  should  retain  their  character  as  chattels  after 
they  had  been  fastened  to  the  roadbed,  would  be  unavailing  as 
against  a  previous  mortgagee  of  the  road  or  a  purchaser  without 
notice.     See,  also,  Stilhnan  v.  Flenniken,  58  Iowa,  450. 

There  is,  therefore,  no  general  rule  which  declares  that  machinery, 
upon  which  there  is  a  chattel  mortgage,  becomes  necessarily  subject 
to  an  existing  mortgage  upon  real  estate  to  which  it  may  afterwards 
be  annexed  with  the  consent  of  the  mortgagee,  to  the  exclusion  or 
postponement  of  the  prior  chattel  mortgage. 

A  prior  mortgagee  cannot  occupy  the  attitude  of  an  innocent  pur- 
chaser. The  interests  and  rights  of  the  holder  of  a  chattel  mortgage 
upon  property  which  is  annexed  to  real  estate  upon  which  there  is 
an  existing  mortgage,  must  be  determined  by  the  practical  applica- 
tion of  equitable  principles  to  the  rights  of  the  respective  parties. 

Whether  the  chattel  mortgage  shall  be  postponed,  notwithstand- 
ing the  agreement  between  the  owner  of  the  land  and  the  mort- 
gagee, must  depend  upon  the  inquiry  whether  or  not  the  preservation 
of  the  rights  of  the  holder  of  the  chattel  mortgage  will  impair  or 
diminish  the  security  of  the  real  estate  mortgagee  as  it  was  when 
he  took  it.  If  it  will  not,  then  it  would  be  inequitable  that  the 
latter  should  defeat  or  destroy  the  security  of  the  former.  If  it  will, 
then  it  was  the  folly  or  misfortune  of  the  holder  of  the  chattel  mort- 
gage that  he  permitted  the  property  to  be  annexed  to  a  freehold  from 
which  it  cannot  be  removed  without  diminishing  or  impairing  an 
existing  mortgage  thereon.  As  was  said  by  the  Court  of  Errors 
and  Appeals  of  New  Jersey,   in   Campbell  v.  Roddy,  supra,  "  Where 


302      CONSTITUENTS  AND    INCIDENTS   OF    LAND.      [PT.  II.  CH.  II. 

the  articles  are  of  such  a  character  that  their  detachment  would 
involve  a  destruction  of  or  a  dismantling  of  an  important  feature  of 
the  realty,  such  annexation  might  well  be  regarded  as  an  abandon- 
ment of  the  lien  by  him  who  impliedly  assented  to  the  annexation." 

Unless  the  detachment  of  mortgaged  chattels  would  materially 
affect  the  security  of  the  real  estate  mortgagee,  by  depreciating  the 
value  of  the  mortgaged  property,  or  by  dismantling  it  of  an  important 
feature  existing  at  the  time  the  mortgage  was  taken,  the  precedent 
real  estate  mortgage  only  attaches  to  the  actual  interest  which  the 
mortgagor  has  in  the  personal  chattels  subsequently  annexed  at  the 
time  of  their  annexation.  Campbell  v.  Roddy,  supra;  United  States  v. 
New  Orleans  Railroad,  12  Wall.  362;  Fosdick  v.  Schall,  99  U.  S.  235. 

Or  if,  as  in  Bass  Foundry,  etc.,  v.  Gallentine,  99  Ind.  525,  the  intro- 
duction of  the  new  machinery  involved  the  dismantling  of  a  mill  upon 
which  a  prior  mortgage  existed,  so  as  to  impair  the  security  thus 
afforded,  a  claim  upon  the  machinery  so  introduced  would  not  pre- 
vail over  the  prior  real  estate  mortgage. 

In  the  present  case  it  appears  that  the  removal  of  the  engine  and 
boiler  and  other  machinery  would  not  injure  or  impair  the  value  of 
the  real  estate  or  the  building  thereon.  There  can  be  no  reason, 
therefore,  so  far  as  the  Eckart  Brothers  are  concerned,  why  a  court 
of  equity  should  practically  destroy  the  security  of  the  appellant,  so 
long  as  the  preservation  of  his  rights  are  not  prejudicial  to  those  of 
the  Eckart  Brothers.  As  is  in  effect  said  in  the  well  considered 
case  already  quoted  from,  if  the  detachment  of  the  articles  so 
annexed  would  occasion  no  damage  to  the  realty,  then  the  lien  upon 
them  can  be  enforced  by  a  court  of  equity  in  the  same  degree  as  if 
they  had  remained  chattels  according  to  the  agreement.  If  the 
detachment  would  occasion  some  diminution  in  the  value,  as  it  would 
have  stood  had  the  attachment  not  been  made,  then  the  deprecia- 
tion must  be  made  whole,  and  the  rights  of  the  parties  adjusted  by 
the  chancellor  according  to  the  equity  of  the  case. 

The  distinction  between  chattels  whose  completeness  and  identity 
as  separate  and  distinct  articles  may  be  preserved,  notwithstanding 
their  annexation,  and  those  which  necessarily  become  absorbed  or 
merged  in  the  realty  by  being  annexed,  must  be  kept  in  view. 
Porter  v .  Pittsburgh  Steel  Co.,  122  U.  S.  267,  283;  Dunham  v.  Rail- 
Co.,  1  Wall.  254;   Galveston  Railroad  v.  Cowdrcy,  11  Wall.  459. 

This  disposes  of  the  case  so  far  as  it  relates  to  the  precedent  mort- 

es.      As   to  the   holder  of  a  chattel   mortgage  who  consents  to 

have  the  mortgaged  chattels  placed  in  such  an  attitude  in  relation 

to  na]  estate  as  that  subsequent  innocent  purchasers  and  mortgagees 

are  liable  to  be  misled  by  the  owner  of  the  land  to  which  they  are 


V.  5-]  FIXTURES:    ANNEXER   HAS    LICENSE.  303 

annexed,  there  seems  to  be  no  equitable  ground  upon  which  his  title 
should  be  enforced  as  against  such  purchasers  or  mortgagees. 

The  peculiar  character  of  the  subsequent  mortgage  executed  to 
the  bank  in  the  present  case,  renders  it  unnecessary,  however,  that 
we  should  enlarge  upon  this  feature  of  the  subject.  Recurring  to 
the  statement  of  the  case,  it  will  be  seen  that,  after  describing  the 
real  estate  upon  which  the  factory  and  machinery  were  situate,  the 
engine,  boiler,  and  other  machinery  are  particularly  and  specifically 
enumerated  as  being  also  and  in  effect  separately  mortgaged. 
Coupled  with  this  was  the  further  stipulation  that  the  mortgagor 
should  not  remove  any  of  the  machinery  enumerated  from  the  land 
on  which  it  was  then  situate,  until  the  mortgage  debt  was  fully  paid. 

This  feature  of  the  mortgage  was  entirely  unnecessary  and  mean- 
ingless, except  upon  the  theory  that  the  parties  recognized  and 
treated  the  engine  and  boiler  and  other  enumerated  articles  as  some- 
thing distinct  from  the  realty,  in  short,  as  personal  property.  This 
being  so,  the  rule,  which  requires  that  effect  shall  be  given  to  every 
part  of  a  contract  according  to  the  manifest  intention  of  the  parties 
as  expressed  by  the  language  employed,  also  requires  us  to  hold  that 
the  intention  of  the  parties  to  what  is  known  as  the  bank  mortgage, 
was  to  regard  the  machinery  as  personal  property,  and  to  include  it 
in  the  mortgage  as  such.  They  took  their  mortgage,  therefore,  sub- 
ject to  the  prior  chattel  mortgage  of  the  appellant  on  the  personal 
property.     *     *     * 

The  conclusions  thus  reached  result  in  a  reversal  of  the  judgment. 

The  judgment  is  accordingly  reversed. 


RICHARDSON  v.  COPELAND. 
6  Gray  (Mass.),  536.  —  1856. 

Shaw,  C.  J.  —  This  is  an  action  of  tort,  in  the  nature  of  trover,  to 
recover  the  value  of  a  steam  engine  and  boiler.  To  maintain  this 
action,  the  plaintiff  must  prove  property  in  himself,  and  a  conversion 
by  the  defendant. 

Upon  the  facts  stated,  the  court  are  of  opinion  that  the  engine 
and  boiler,  having  been  erected  on  the  premises  of  Josiah  Richardson, 
of  which  he  was  then  the  owner  in  fee,  subject  to  several  mortgages, 
became  annexed  to  the  freehold.  Winslow  v.  Merchants'  Ins.  Co.,  4 
Mete.  306.  This  real  estate  comprised  a  manufactory  occupied  and 
carried  on  by  said  Richardson,  and  the  engine  was  erected  to  furnish 


304      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

power  for  such  manufactory.  The  steam  boiler  was  permanently 
set  in  brick  work,  and  could  not  be  removed  without  taking  down 
the  brick  work,  and  the  engine  was  permanently  annexed  to  the 
buildings.  This  permanent  annexation  of  the  engine  and  boiler  to 
the  freehold,  de  facto,  rendered  them  part  of  the  realty;  and  his 
agreement  with  the  builders  to  give  them  a  mortgage  thereon  as 
personal  property,  as  against  all  those  who  took  title  to  the  estate 
in  fee,  was  inoperative  and  void.  No  title  to  these  articles  passed 
as  personal  property  to  the  mortgagees,  which  they  could  assert 
against  a  third  party.  The  engine  and  boiler  thus  remained  part  of 
the  realty  till  Josiah  Richardson  became  insolvent,  and  the  estate 
passed  to  his  assignees,  subject  to  the  right  of  the  mortgagees  of  the 
real  estate;  it  was  rightly  sold  by  order  of  the  commissioner,  on 
their  petition,  and  a  good  title  passed  to  Harlow,  the  purchaser. 
He  afterwards  severed  them,  and  thus  reconverted  them  into  per- 
sonal property,  as  he  lawfully  might,  and  sold  them  to  the  defendant, 
who  thereby  took  a  good  title. 

The  evidence  of  usage  was  rightly  rejected;  it  could  not  be 
received  to  control  the  operation  of  law,  arising  from  the  actual 
annexation  of  the  engine  and  boiler  to  the  freehold.  If  it  be  said, 
it  might  have  tended  to  show  the  intent  of  the  parties;  the  answer 
is,  that  the  intent  of  the  parties  was  manifest  enough  from  the 
agreement  of  the  parties  and  the  mortgage.  But  the  difficulty  was 
(by  mistake  of  the  law,  no  doubt),  that  this  intention  was  one  which 
the  law  could  not  carry  into  effect,  that  of  hypothecating  a  portion 
of  the  realty,  as  personal  property,  without  severance. 

The  fact  that  Harlow  had  full  knowledge  of  the  history  of  the 
mortgage,  did  not  impair  his  right  to  be  a  purchaser. 

It  is  to  be  observed,  as  a  fact  important  to  the  present  case,  that 
the  engine  and  boiler  were  purchased  and  set  up  in  the  factory  by 
one  who  himself  owned  the  freehold.  Had  they  been  so  bought  and 
placed  by  a  tenant  on  leased  premises,  the  case  might  have  presented 
a  different  question. 

Judgment  for  the  defendant. 


V.  5-]  FIXTURES:    ANNEXER   HAS    LICENSE.  305 

B.   The  chattel-owner,  annexing,  has  an  interest  in  the  land} 

a.    The  amiexer  is  the  general  owner  of  the  land  or  is  on  his  way  to 

become  such.1 

(1.)  The  Question  Arises  Between  Real  and  Personal  Representatives  of 

the  annexer. 

(«.)  Between  executor  and  administrator  and  the  persons  succeeding  to  a  decedent's 

real  estate* 

BISHOP  v.  BISHOP. 
11  New  York,  123.  —  1854. 

Action  upon  a  promissory  note. 

In  1844  Lyman  Bishop  gave  to  one  Blackman  a  mortgage  upon 
his  farm.  Thereafter  Bishop  planted  a  hop-yard  on  the  farm,  and 
in  1849  died,  still  owning  the  farm,  and  while  the  hop-poles  in  ques- 
tion in  this  action  were  in  use  in  the  yard.  Plaintiff,  as  executrix, 
sold  the  hop-poles,  as  personal  property  of  the  estate,  to  defendant, 
and  the  note  in  suit  was  given  for  the  price  thereof.  At  the  time 
of  such  sale  the  hop-poles  were  in  heaps  in  the  hop-yard.  Later  on 
the  farm  was  sold  on  the  mortgage  to  one  Nichols,  who  took  posses- 
sion of  the  hop-poles  which  he  found  on  the  place.  Defendant 
alleges  that  Nichols  got  title  to  the  hop-poles  and  that  the  considera- 
tion of  his  note  has  failed.  The  decisions  below  were  in  favor  of 
defendant.     Plaintiff  appeals. 

Gardiner,  Ch.  J.  — The  only  question  presented  in  this  case  is 
whether  the  hop-poles,  at  the  time  of  the  sale  to  the  defendant,  were 
personal  property,  or  to  be  deemed  part  of  the  realty.  This  ques- 
tion, I  think,  is  settled  by  the  facts  stated  in  the  answer,  to  which 
the  plaintiff  has  demurred.  If  hop-poles  can  constitute  a  portion 
of  the  real  estate,  the  defendant  acquired  no  title  to  those  purchased 
by  him,  conceding  the  truth  of  the  answer.  Assuming,  as  we  must, 
the  truth  of  the  facts  alleged  by  the  defendant  in  his  answer,  the 
hop-poles  were,  at  the  time  of  the  sale,  a  part  of  the  realty.  Of 
course,  no  title  passed  to  the  purchaser,  and  the  note  in  question 
was  wholly  without  consideration. 

1  "Annexations  in  sua  solo."  —  Ed. 

2  As  by  adverse  possession  or  under  a  contract  for  the  purchase  of  the 
land. —  Ed. 

3  For  the  special  rule  in  New  York  as  to  what  "fixtures"  are  to  be  deemed 
assets,  see  §  2712  Code  Civ.  Pro.,  subdivisions  4  and  9,  and  the  case  of  Walker 
v.  Sherman,  p.  218,  supra.  —  Ed. 

LAW  OF  PROP.   IN  LAND  —  20 


306      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

The  root  of  the  hop  is  perennial,  continuing  for  a  series  of  years. 
That  this  root  would  pass  to  a  purchaser  of  the  real  estate,  there 
can  be  no  question.  The  hop-pole  is  indispensable  to  the  proper 
cultivation  of  this  crop.  It  is  distinctly  averred,  and  admitted,  that 
the  poles  belonged  to  the  yard  upon  these  premises,  that  they  were 
used  for  the  purpose  of  cultivation,  and  were  removed  from  the  place 
where  they  were  set,  in  the  usual  course  of  agriculture,  with  a  view 
to  gather  the  crop,  and  without  any  design  to  sever  them  from  the 
freehold;  but,  on  the  contrary,  with  the  purpose  of  replacing  them, 
as  the  exigency  of  the  new  growth  required.  In  a  word,  they  were 
to  be  permanently  used  upon  the  land,  and  were  necessary  for  its 
proper  improvement. 

If  the  poles  had  been  standing  in  the  yard  at  the  time  of  the  sale, 
all  admit  that  they  would  have  formed  a  part  of  the  realty.  But 
by  being  placed  in  heaps  for  a  temporary  purpose,  they  would  not 
lose  their  distinctive  character,  as  appurtenant  to  the  land,  any  more 
than  rails,  or  boards,  from  a  fence  in  the  same  condition,  would 
become  personal  property.  Indeed,  the  case  cannot  be  distinguished 
from  Goodrich  v.  Jones,  2  Hill,  142,  where  it  was  held  that  manure 
in  heaps  in  the  yard,  and  that  fences,  constitute  a  part  of  the  free- 
hold; and  where  the  materials  of  which  the  fence  is  composed  were 
temporarily  detached,  without  any  intent  to  divert  them  from  their 
original  use,  it  would  work  no  change  in  their  nature. 

The  opinion,  in  the  case  cited,  was  pronounced  by  Justice  Cowen, 
who  was  himself  an  advocate  for  the  doctrine  of  corporeal  annexa- 
tion, as  being  in  general  the  true  criterion  of  a  fixture.  Walker  v. 
Sherman^  20  Wend.  655.  But  all  that  was  claimed  by  the  learned 
justice,  in  his  elaborate  opinion  in  Walker  v.  Sherman,  was  that  the 
chattel  should  be  "  habitually  attached  to  the  land,  or  some  building 
upon  it."  It  need  not,  he  adds,  "  be  constantly  fastened."  I 
think,  according  to  this  principle,  that  hop-poles  which  are  put  into 
the  ground  every  season,  and  continue  there  until  they  are  removed 
to  gather  the  crop,  and  which  are  designed  to  be  thus  used,  in  the 
same  yard,  for  the  same  purpose,  until  they  decay  by  lapse  of  time, 
may  without  impropriety  be  considered  as  "  habitually  attached  to 
the  land,"  although  "  not  constantly  fastened  to  it." 

The  judgment  of  the  Supreme  Court  should  be  affirmed.1 

'Of  the  other  judges,  four  concurred  in  this  opinion.  Denio  and  John- 
son, JJ.,  dissented,  regarding  the  hop-poles  as  mere  tools  or  implements  and  so 
chattels.  —  En. 


V.  5-]  FIXTURES:    ANNEXER   HAS   LICENSE.  307 

{b.)  Between  execution  Creditor  of  annexer  and  his  vendor  or  mortgagor, 

SNEDEKER  v.  WARRING. 
12  New  York,  170.  —  1854. 
[Reported  herein  at  p.  231.] 


(2.)  Between  Vendor  (by  Deed)  and  Vendee;  Mortgagor  and  Mortgagee. 
Between  Tenants  in  Common. 

FARRAR  v.  STACKPOLE. 

6  Maine,  154.  —  1829. 

[Reported  herein  at  p.  227.] 


WALKER  v.  SHERMAN. 

20  Wendell  (N.  Y.),  636.  —  1839. 
[Reported  herein  at  p.  218.] 


PEIRCE  v.  GODDARD. 
22  Pickering  (Mass.),  559.  — 1839. 

Wilde,  J.,  drew  up  the  opinion  of  the  court.  — This  action  is  sub- 
mitted on  an  agreed  statement  of  facts,  by  which  it  appears  that 
one  Davenport,  being  the  owner  of  a  lot  of  land  with  a  dwelling- 
house  thereon,  mortgaged  the  same  to  the  plaintiff;  that  afterwards 
he  took  down  the  house,  and  with  the  materials  partly,  and  partly 
with  new  materials,  built  a  new  house  on  another  lot  of  his  at  some 
distance;  and  that  after  the  new  house  was  completed,  he,  for  a 
valuable  consideration,  sold  the  last-mentioned  lot  and  house  to  the 
defendant. 

There  are  two  counts  in  the  declaration,  one,  for  the  conversion 
of  the  newly  erected  house,  and  the  other,  for  the  conversion  of  the 
materials  with  which  it  was  built,  belonging  to  the  old  house. 

The  plaintiff's  counsel  insist,  that  the  old  house  was  the  property 
of  the  plaintiff,  and  that  Davenport  had  no  right  to  take  it  down, 
and  could  not,  therefore,  acquire  any  property  in  the  materials  by 
such  a  wrongful  act;  that  the  new  house,  being  built  with  the 
materials  from  the  old  house  in  part,  became  the  property  of  the 
plaintiff,  although  new  materials  were  added  by  right  of  accession; 


308      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

and  that  Davenport,  having  no  property  in  the  house,  as  against  the 
plaintiff,  could  convey  no  title  to  it  to  the  defendant. 

That  Davenport  is  responsible  for  taking  down  and  removing  the 
old  house  cannot  admit  of  a  doubt;  but  it  does  not  follow  that  the 
property  in  the  new  house  vested  in  the  plaintiff. 

The  rules  of  law,  by  which  the  right  of  property  may  be  acquired 
by  accession  or  adjunction,  were  principally  derived  from  the  civil 
law,  but  have  been  long  sanctioned  by  the  courts  of  England  and  of 
this  country  as  established  principles  of  law. 

The  general  rule  is,  that  the  owner  of  property,  whether  the  prop- 
erty be  movable  or  immovable,  has  the  right  to  that  which  is  united 
to  it  by  accession  or  adjunction.  But  by  the  law  of  England  as  well 
as  by  the  civil  law,  a  trespasser,  who  wilfully  takes  the  property  of 
another,  can  acquire  no  right  in  it  on  the  principle  of  accession,  but 
the  owner  may  reclaim  it,  whatever  alteration  of  form  it  may  have 
undergone,  unless  it  be  changed  into  a  different  species  and  be  inca- 
pable of  being  restored  to  its  former  state;  and  even  then  the  tres- 
passer, by  the  civil  law,  could  acquire  no  right  by  the  accession,  unless 
the  materials  had  been  taken  away  in  ignorance  of  their  being  the 
property  of  another.  2  Kent's  Comm.  362;  Betts  v.  Lee,  5  Johns. 
R.  348.     But  there  are  exceptions  to  the  general  rule. 

It  is  laid  down  by  Molloy  as  a  settled  principle  of  law,  that  if  a 
man  cuts  down  the  trees  of  another,  or  takes  timber  or  plank  pre- 
pared for  the  erecting  or  repairing  of  a  dwelling-house,  nay,  though 
some  of  them  are  for  shipping,  and  builds  a  ship,  the  property  fol- 
lows not  the  owners,  but  the  builders.  Mole  de  Jure  Mar.  lib.  2,  c. 
1,  sec.  7. 

Another  similar  exception  is  laid  down  by  Chancellor  Kent  in  his 
Commentaries,  which  is  directly  in  point  in  the  present  case.  If,  he 
says,  A.  builds  a  house  on  his  own  land  with  the  materials  of  another, 
the  property  in  the  land  vests  the  property  in  the  building  by  right 
of  accession,  and  the  owner  of  the  land  would  only  be  obliged  to 
answer  to  the  owner  of  the  materials  for  the  value  of  them.  2  Kent's 
Comm.  360,  361.  This  principle  is  fully  sustained  by  the  authorities. 
In  Bro.  tit.  Property,  pi.  23,  it  is  said,  that  if  timber  be  taken  and 
made  into  a  house,  it  cannot  be  reclaimed  by  the  owner;  for  the 
nature  of  it  is  changed,  and  it  has  become  a  part  of  the  freehold. 
In  Moore,  20,  it  was  held,  that  if  a  man  takes  trees  of  another  and 
makes  them  into  boards,  still  the  owner  may  retake  them,  but  that 
if  a  house  be  made  with  the  timber  it  is  otherwise. 

Id  Popham,  3<S,  this  principle  is  further  extended.  The  plaintiff 
in  that  case  had  mixed  his  own  hay  with  hay  of  the  defendant  on  his 
land,  and  the  defendant   took   away  the  hay  thus  intermixed;   and  it 


V.  5-]  FIXTURES:    ANNEXER   HAS    LICENSE.  309 

was  held,  that  he  had  a  right  go  to  do.  But  it  was  also  held,  that 
if  the  plaintiff  had  taken  the  defendant's  hay  and  carried  it  to  his 
house  and  there  intermixed  it  with  his  own  hay,  the  defendant  could 
not  take  back  his  hay,  but  would  be  put  to  his  action  against  the 
plaintiff,  for  taking  his  hay.  If  there  be  any  doubt  of  the  doctrine 
laid  down  in  this  case,  it  does  not  affect  the  present  case.  The 
doctrine  laid  down  in  the  former  cases  is  fully  supported  by  the  year 
books,  5  Hen.  7,  16;  and  I  am  not  aware  of  any  modern  decison  or 
authority  in  which  this  old  doctrine  of  the  English  law  has  been  con- 
troverted. 

The  case  of  Russell  v.  Richards,  1  Fairfield,  429,  cited  by  the 
plaintiff's  counsel,  was  decided  on  the  ground,  that  the  building  in 
controversy  was  personal  property  and  had  never  become  a  part  of 
the  freehold.  In  the  present  case  it  cannot  be  questioned,  that  the 
newly  erected  dwelling-house  was  a  part  of  the  freehold,  and  was  the 
property  of  Davenport.  The  materials  used  in'  its  construction 
ceased  to  be  personal  property,  and  the  owner's  property  in  them 
was  divested  as  effectually  as  though  they  had  been  destroyed.  It 
is  clear,  therefore,  that  the  plaintiff  could  not  maintain  an  action 
even  against  Davenport,  for  the  conversion  of  the  new  house.  And 
it  is  equally  clear,  that  he  cannot  maintain  the  present  action  for  the 
conversion  of  the  materials  taken  from  the  old  house.  The  taking 
down  that  house  and  using  the  materials  in  the  construction  of  the 
new  building  was  the  tortious  act  of  Davenport,  for  which  he  alone 
is  responsible. 

Plaintiff  nonsuit. 


(3.)  Between  Land-contract-vendee  Annexing,  and  His  Vendor. 
THE  MICHIGAN  MUTUAL  LIFE  INSURANCE  CO.  v.  CRONK. 

93  Michigan,  49.  —  1892. 

Montgomery,  J.  —  The  defendant,  on  the  18th  day  of  June,  1887, 
contracted  in  writing  to  purchase  of  one  William  L.  Jenks  the 
N.  W.  one-quarter  of  S.  W.  one-quarter  of  section  19,  township  7 
N.,  range  16  E.  The  contract  was  in  the  usual  printed  form,  and 
contained  a  covenant  on  the  part  of  the  defendant  that  he  would 
not  commit,  or  suffer  any  other  person  to  commit,  any  waste  or 
damage  to  said  lands  or  appurtenances,  except  for  firewood  or 
otherwise  for  his  own  use,  or  while  clearing  off  the  lands  for  cultiva- 
tion in  the  ordinary  manner.  Immediately  after  entering  upon  the 
lands  he  erected  a  small  dwelling-house  thereon,  and  lived  in  it  for 
two  years.     He  then  made  default  in  his  payments,  and  the  plaintiff, 


3IO      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

to  whom  the  contract  had  in  the  meantime  been  assigned  by  Jenks, 
terminated  the  contract,  and  required  the  defendant  to  surrender 
possession.  The  house  was  a  one-story  frame  house,  20  by  26,  and 
suitable  for  the  purposes  of  a  dwelling  house,  to  be  used  upon  the 
land  in  question.  After  the  removal  of  the  house  from  the  premises, 
it  was  placed  upon  a  40  across  the  street,  and  plaintiff,  after  demand, 
brought  replevin.  The  circuit  judge  directed  a  verdict  for  the 
plaintiff,  and  the  defendant  appeals. 

Two  questions  only  are  presented  in  appellant's  brief.  It  is  first 
claimed  that  replevin  will  not  lie,  because  the  house  had  become  a 
fixture  upon  the  land  to  which  it  was  moved,  and  was  therefore  real 
estate;  second,  that,  as  the  house  was  occupied  as  a  homestead  by 
the  defendant  and  his  family,  the  wife  was  a  necessary  party. 

We  think  that  when  this  house  was  erected  upon  the  land  held 
under  contract  it. became  a  part  of  the  realty,  and  as  such  the  prop- 
erty of  the  owner  of  the  land,  subject  only  to  the  rights  of  the  pur- 
chaser therein.  Kingsley  v.  McFarland,  82  Me.  231,  19  Atl.  Rep. 
442;  Milton  v.  Colby,  5  Mete.  (Mass.)  78;  Iron  Co.  v.  Black,  70  Me. 
473;  Tyler,  Fixt.  78.  It  being  severed  from  the  land,  it  became 
personal  property,  and  replevin  would  lie  unless  it  became  affixed  to 
the  realty  by  the  tortious  act  of  the  defendant  in  removing  it  and 
placing  it  upon  other  lands.  But  we  think  no  such  legal  effect  can 
be  given  to  the  defendant's  wrong.  The  house  was  moved  upon  land 
of  a  third  party.  There  was  no  privity  of  title  between  the  owner- 
ship of  the  house  and  the  ownership  of  the  land  to  which  it  was 
removed.  The  cases  cited  by  defendant  of  Morrison  v.  Berry,  42 
Mich.  389,  and  Wagar  v.  Briscoe,  38  Id.  587,  do  not  apply. 

The  house  remaining  personal  property  in  the  wrongful  possession 
of  defendant,  it  follows  that  no  homestead  rights,  which  consist  in  an 
interest  in  lands,  attached. 

The  judgment  is  affirmed,  with  costs. 


b.   Annexer  is  tenant  for  life. 

OVERMAN  v.  SASSER. 

107  NORTH  Carolina,  432.  —  1890. 

Casf.  submitted  without  action. 

Eliza  Sasser  and  Amanda  Cassely  were  the  owners  of  a  tract  of  land 

in  common.     Mrs.  Sasser  died  and  her  interest  in  the  land  descended 

ie  defendants  as  her  heirs,  her  husband,  Eli  Sasser,  becoming 

tenant   thereof  for  his  life   by  the  curtesy.     Thereafter  Eli  Sasser 


V.  5-]  FIXTURES:    ANNEXER  IS  TENANT   FOR    LIFE.  31I 

and  others  annexed  certain  machinery  to  this  real  estate  for  the 
purpose  of  running  a  mill  and  a  cotton-gin. 

The  life  tenant  died  bequeathing  these  annexations  to  his  second 
wife  and  others,  and  plaintiff,  as  executor  of  his  will,  now  seeks  to 
recover  them  from  the  remaindermen. 

Judgment  below  for  the  executor.     The  remaindermen  appeal. 

Clark,  J.  —  In  the  great  case  of  Elwes  v.  Mawe,  3  East,  38,  2 
Smith  Ldg.  Cases,  Lord  Ellenborough  holds  the  doctrine  of  fixtures 
to  depend  largely  in  its  application,  upon  the  relations  of  the  parties, 
which  he  divided  into  three  clases. 

1.  Executor  and  heir.  As  between  them,  the  common-law  rule, 
that  whatever  is  affixed  to  the  freehold  becomes  a  part  of  it  and 
passes  with  it  {guicquid  plantatur  solo,  solo  cedii)  is  observed  in  full 
vigor.  In  this  class  fall  also  mortgagor  and  mortgagee,  vendor  and 
vendee,  as  to  whom  the  strict  rule  of  the  common  law  is  still  in 
force.     Foote  v.  Gooch,  96  N.  C.  265. 

2.  Between  executor  of  tenant  for  life,  or  in  tail,  and  the  remain- 
derman, in  which  case  the  right  to  fixtures  is  considered  more 
favorable  for  the  executor. 

3.  Between  landlord  and  tenant,  in  which  case,  in  favor  of  trade, 
and  to  encourage  industry,  the  greatest  latitude  is  allowed,  so  that 
all  fixtures  set  up  for  better  enjoyment  of  trade  are  retained  by  the 
tenant,  though  this  does  not  include  fixtures  used  for  agricultural 
purposes.  Where,  however,  they  are  used  for  mixed  purposes  of 
trade  and  agriculture,  they  are  held  to  belong  to  the  tenant.  Wil- 
liams on   Persona]   Property,  16,  note,   and   numerous  cases  cited. 

The  reason  of  the  distinction  is  pointed  out  by  Pearson,  C.  J., 
very  succinctly  in  Moore  v.  Valentine,  77  N.  C.  188.  When  additions 
are  made  to  the  land  by  the  owner,  whether  vendor,  mortgagor  or 
ancestor,  the  purpose  is  to  enhance  its  value,  and  to  be  permanent. 
With  the  tenant  the  additions  are  made  for  a  temporary  purpose, 
and  not  with  a  view  of  making  them  part  of  the  land,  hence  for  the 
encouragement  of  trade,  manufacturing,  etc.,  the  tenant  is  allowed 
to  remove  what  had  apparently  become  affixed  to  the  freehold,  if 
affixed  for  purpose  of  trade,  and  not  merely  for  better  enjoyment  of 
the  premises.     Pemberton  v.  King,  2  Dev.  376. 

In  the  present  case,  it  is  agreed  that  "  the  engine,  cotton-gin  and 
condenser  were  attached  to  the  mill  by  the  tenant  by  the  curtesy 
after  his  term  commenced,  and  not  solely  for  the  better  enjoyment 
of  the  land  and  farm,  but  for  the  purpose  of  milling  corn  and  gin- 
ning cotton  for  the  neighborhood,  as  well  as  himself,  and  for  the 
mixed  purpose  of  trade  and  agriculture." 


312      CONSTITUENTS   AND   INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

His  Honor  properly  held  that  they  belonged  to  the  executor  of  the 
life  tenant  as  against  the  remaindermen.  This  case  comes  under 
the  second  class  mentioned  by  Lord  Ellenborough,  and  there  are 
few  adjudications  on  that  class,  but  the  ruling  of  the  court  below  is 
sustained  by  that  of  Lord  Hardwicke  in  Lawton  v.  Lawlon,  3  Atk. 
13,  and  in  Dudley  v.  Wood,  Amb.  113,  and  the  observation  of  Lord 
Mansfield  in  Lawton  v.  Salmon,  1  H.  Bl.  260.  There  are  subsequent 
cases  which  all  seem  to  follow  the  above  precedents.  Tyler  on 
Fixtures  (ed.  1877),  490,  491,  496,  503. 

In  our  own  reports,  Pcmberton  v.  King,  2  Dev.  376;  Feinster  v. 
Johnson,  64  N.  C.  259,  and  Railroad  v.  Deal,  90  N.  C.  no,  which 
recognized  the  right  of  tenant  to  remove,  were  cases  between  tenant 
and  lessor,  while  Bryan  v.  Lawrence,  5  Jones,  337;  Latham  v.  Blakely, 
70  N.  C.  368;  Deal  v.  Palmer,  72  N.  C.  582;  Bond  v.  Coke,  71 
N.  C.  97;  Foote  v.  Gooch,  96  N.  C.  265,  and  Home  v.  Smith,  105 
N.  C.  322,  which  adjudged  the  fixtures  to  have  become  part  of  the 
freehold,  all  came  under  Lord  Ellenborough's  first  class,  supra. 

This  is  the  first  instance  in  which  the  rule  as  to  fixtures  between 
executor  of  tenant  for  life  and  the  remainderman  has  come  before 
the  courts  of  this  State.  It  assimilates  that  between  landlord  and 
tenant,  the  principal  difference,  perhaps,  being  that  the  executor 
can  remove  such  fixtures  within  a  reasonable  time  after  the  death 
of  the  life  tenant,  whereas,  between  landlord  and  tenant,  the  tenant 
cannot  go  on  the  premises  to  remove  the  fixtures  after  the  termina- 
tion of  his  lease  without  being  a  trespasser,  except  in  those  cases 
where  the  duration  of  his  term  is  not  fixed,  but  uncertain,  or  where 
there  is  an  agreement  that  he  may  remove  after  the  expiration  of 
the  lease.  No  error. 


c.   Annexer  is  tenant  for  years. 

(1.)  Trade  Fixtures. 

VAN  NESS  v.  PACARD. 

2  Peters,  (U.  S.)  137.—  1829. 

Mr.  Justice  Story  delivered  the  opinion  of  the  court.  — This  is 
a  writ  of  error  to  the  Circuit  Court  of  the  District  of  Columbia,  sit- 
ting U>r  the  county  of  Washington. 

The  original  was  an  action  on  the  case  brought  by  the  plaintiffs  in 
error  against  the  defendant  for  waste  committed  by  him,  while  tenant 
of  the  plaintiffs,  to  their  reversionary  interest,  by  pulling  down  and 
removing  from  the  demised  premises  a  messuage  or  dwelling-house 


V.  5-]         FIXTURES:     REMOVAL    BY    TENANT   FOR   YEARS.  3 1 3 

erected  thereon  and  attached  to  the  freehold.  The  cause  was  tried 
upon  the  general  issue,  and  a  verdict  found  for  the  defendant,  upon 
which  a  judgment  passed  in  his  favor;  and  the  object  of  the  present 
writ  of  error  is  to  revise  that  judgment. 

By  the  bill  of  exceptions  filed  at  the  trial  it  appeared  that  the 
plaintiffs  in  1820,  demised  to  the  defendant,  for  seven  years,  a  vacant 
lot  in  the  city  of  Washington,  at  the  yearly  rent  of  $112.50,  with  a 
clause  in  the  lease  that  the  defendant  should  have  a  right  to  pur- 
chase the  same  at  any  time  during  the  term  for  $1,875.  After  the 
defendant  had  taken  possession  of  the  lot  he  erected  thereon  a 
wooden  dwelling  house,  two  stories  high  in  front,  with  a  shed  of  one 
story,  a  cellar  of  stone  or  brick  foundation,  and  a  brick  chimney. 
The  defendant  and  his  family  dwelt  in  the  house  from  its  erection 
until  near  the  expiration  of  the  lease,  when  he  took  the  same  down 
and  removed  all  the  materials  from  the  lot.  The  defendant  was  a 
carpenter  by  trade,  and  he  gave  evidence,  that  upon  obtaining  the 
lease  he  erected  the  building  above  mentioned  with  a  view  to  carry 
on  the  business  of  a  dairyman,  and  for  the  residence  of  his  family 
and  servants  engaged  in  his  said  business;  and  that  the  cellar,  in 
which  there  was  a  spring,  was  made  and  exclusively  used  for  a  milk 
cellar,  in  which  the  utensils  of  his  said  business  were  kept  and 
scalded,  and  washed,  and  used;  and  that  feed  was  kept  in  the  upper 
part  of  the  house,  which  was  also  occupied  as  a  dwelling  for  his 
family.  That  the  defendant  had  his  tools  as  a  carpenter,  and  two 
apprentices  in  the  house,  and  a  work-bench  out-of-doors;  and  car- 
penter's work  was  done  in  the  house,  which  was  in  a  rough,  unfinished 
state  and  made  partly  of  old  materials.  That  he  also  erected  on  the 
lot  a  stable  for  his  cows  of  plank  and  timber  fixed  upon  posts 
fastened  into  the  ground,  which  stable  he  removed  with  the  house 
before  the  expiration  of  his  lease. 

Upon  this  evidence  the  counsel  for  the  plaintiffs  prayed  for  an 
instruction,  that  if  the  jury  should  believe  the  same  to  be  true,  the 
defendant  was  not  justified  in  removing  the  said  house  from  the 
premises;  and  that  he  was  liable  to  the  plaintiffs  in  this  action. 
This  instruction  the  court  refused  to  give;  and  the  refusal  constitutes 
his  first  exception. 

The  defendant  further  offered  evidence  to  prove  that  a  usage  and 
custom  existed  in  the  city  of  Washington,  which  authorized  a  tenant 
to  remove  any  building  which  he  might  erect  upon  rented  premises, 
provided  he  did  it  before  the  expiration  of  the  term.  The  plaintiffs' 
objected  to  this  evidence;  but  the  court  admitted  it.  This 
constitutes  the  second  exception. 

Testimony  was  then  introduced  on  this  point,  and  after  the  exam- 


3H      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

ination  of  the  witnesses  by  the  defendant,  the  plaintiffs  prayed  the 
court  to  instruct  the  jury  that  the  evidence  was  not  competent  to 
establish  the  fact  that  a  general  usage  had  existed  or  did  exist  in 
the  city  of  Washington  which  authorized  a  tenant  to  remove  such  a 
house  as  that  erected  by  the  tenant  in  this  case;  nor  was  it  compe- 
tent for  the  jury  to  infer  from  the  said  evidence  that  such  a  usage 
had  existed.  The  court  refused  to  give  this  instruction,  and  this 
constitutes  the  third  exception. 

The  counsel  for  the  plaintiffs  then  introduced  witnesses  to  disprove 
the  usage;  and  after  their  testimony  was  given,  he  prayed  the  court 
to  instruct  the  jury  that,  upon  the  evidence  given  as  aforesaid  in  this 
case,  it  is  not  competent  for  them  to  find  a  usage  or  custom  of  the 
place  by  which  the  defendant  could  be  justified  in  removing  the 
house  in  question;  and  there  being  no  such  usage,  the  plaintiffs  are 
entitled  to  a  verdict  for  the  value  of  the  house  which  the  defendant 
pulled  down  and  destroyed.  The  court  was  divided  and  did  not  give 
the  instruction  so  prayed;  and  this  constitutes  the  fourth  exception. 

The  first  exception  raises  the  important  question,  what  fixtures 
erected  by  a  tenant  during  his  term  are  removable  by  him? 

The  general  rule  of  the  common  law  certainly  is  that  whatever  is 
once  annexed  to  the  freehold  becomes  part  of  it,  and  cannot  after- 
ward be  removed,  except  by  him  who  is  entitled  to  the  inheritance. 
The  rule,  however,  never  was,  at  least  as  far  back  as  we  can  trace 
it  in  the  books,  inflexible  and  without  exceptions.  It  was  construed 
most  strictly  between  executor  and  heir  in  favor  of  the  latter;  more 
liberally  between  tenant  for  life  or  in  tail,  and  remainderman  or 
reversioner,  in  favor  of  the  former;  and  with  much  greater  latitude 
between  landlord  and  tenant  in  favor  of  the  tenant.  But  an  excep- 
tion of  a  much  broader  cast,  and  whose  origin  may  be  traced  almost 
as  high  as  the  rule  itself,  is  of  fixtures  erected  for  the  purposes  of 
trade.  Upon  principles  of  public  policy,  and  to  encourage  trade  and 
manufactures,  fixtures  which  were  erected  to  carry  on  such  business 
were  allowed  to  be  removed  by  the  tenant  during  his  term,  and  were 
deemed  personalty  for  many  other  purposes.  The  principal  cases 
are  collected  and  reviewed  by  Lord  Ellenborough  in  delivering  the 
opinion  of  the  court  in  Elwes  v.  Mawe,  3  East's  R.  38;  and  it  seems 
unnecessary  to  do  more  than  to  refer  to  that  case  for  a  full  summary 
of  the  general  doctrine  and  its  admitted  exceptions  in  England. 
The  court  there  decided,  that  in  the  case  of  landlord  and  tenant 
there  had  been  no  relaxation  of  the  general  rule  in  cases  of  erections 
solely  for  agricultural  purposes,  however  beneficial  or  important 
they  might  be  as  improvements  of  the  estate.  Being  once  annexed 
to  the  freehold   by  the  tenant  they  became  a  part  of  the  realty  and 


V.  5-]  FIXTURES:    REMOVAL    BY   TENANT    FOR   YEARS.  315 

could  never  afterward  be  severed  by  the  tenant.  The  distinction 
is  certainly  a  nice  one  between  fixtures  for  the  purposes  of  trade  and 
fixtures  for  agricultural  purposes;  at  least  in  those  cases  where  the 
sale  of  the  produce  constitutes  the  principal  object  of  the  tenant,  and 
the  erections  are  for  the  purpose  of  such  a  beneficial  enjoyment  of 
the  estate.  But  that  point  is  not  now  before  us;  and  it  is  unneces- 
sary to  consider  what  the  true  doctrine  is  or  ought  to  be  on  this  sub- 
ject. However  well  settled  it  may  now  be  in  England,  it  cannot 
escape  remark  that  learned  judges  at  different  periods  in  that 
country  have  entertained  different  opinions  upon  it,  down  to  the 
very  date  of  the  decision  in  Elwes  v.  Mawe,  3  East's  R.  38. 

The  common  law  of  England  is  not  to  be  taken  in  all  respects  to 
be  that  of  America.  Our  ancestors  brought  with  them  its  general 
principles,  and  claimed  it  as  their  birthright;  but  they  brought  with 
them  and  adopted  only  that  portion  which  was  applicable  to  their 
situation.  There  could  be  little  or  no  reason  for  doubting  that  the 
general  doctrine  as  to  things  annexed  to  the  freehold,  so  far  as  it 
respects  heirs  and  executors,  was  adopted  by  them.  The  question 
could  arise  only  between  different  claimants  under  the  same  ancestor, 
and  no  general  policy  could  be  subserved  by  withdrawing  from  the 
heir  those  things  which  his  ancestor  had  chosen  to  leave  annexed 
to  the  inheritance.  But  between  landlord  and  tenant  it  is  not  so 
clear  that  the  rigid  rule  of  the  common  law,  at  least  as  it  is  expounded 
in  3  East,  38,  was  so  applicable  to  their  situation  as  to  give  rise  to 
necessary  presumption  in  its  favor.  The  country  was  a  wilderness, 
and  the  universal  policy  was  to  procure  its  cultivation  and  improve- 
ment. The  owner  of  the  soil  as  well  as  the  public  had  every  motive 
to  encourage  the  tenant  to  devote  himself  to  agriculture,  and  to 
favor  any  erections  which  should  aid  this  result;  yet,  in  the  com- 
parative poverty  of  the  country,  what  tenant  could  afford  to  erect 
fixtures  of  much  expense  or  value  if  he  was  to  lose  his  whole  interest 
therein  by  the  very  act  of  erection?  His  cabin  or  log  hut,  however 
necessary  for  any  improvement  of  the  soil,  would  cease  to  be  his 
the  moment  it  was  finished.  It  might,  therefore,  deserve  considera- 
tion whether,  in  case  the  doctrine  were  not  previously  adopted  in  a 
State  by  some  authoritative  practice  or  adjudication,  it  ought  to  be 
assumed  by  this  court  as  a  part  of  the  jurisprudence  of  such  State 
upon  the  mere  footing  of  its  existence  in  the  common  law.  At 
present  it  is  unnecessary  to  say  more  than  that  we  give  no  opinion 
on  this  question.  The  case  which  has  been  argued  at  the  bar  may 
well  be  disposed  of  without  any  discussion  of  it. 

It  has  been  already  stated  that  the  exceptions  of  buildings  and 
other  fixtures  for  the  purpose  of  carrying  on  a  trade  or  manufacture 


316      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

is  of  very  ancient  date,  and  was  recognized  almost  as  early  as  the 
rule  itself.  The  very  point  was  decided  in  20  Henry  VII.,  13a.  and 
b.,  where  it  was  laid  down,  that  if  a  lessee  for  years  made  a  furnace 
for  his  advantage,  or  a  dyer  made  his  vats  or  vessels  to  occupy  his 
occupation,  during  the  term,  he  may  afterward  remove  them.  That 
doctrine  was  recognized  by  Lord  Holt  in  Poole's  Case,  1  Salk.  368, 
in  favor  of  a  soap-boiler  who  was  tenant  for  years.  He  held  that 
the  party  might  well  remove  the  vats  he  set  up  in  relation  to  trade, 
and  that  he  might  do  it  by  the  common  law  (and  not  by  virtue  of 
any  custom)  in  favor  of  trade  and  to  encourage  industry.  In  Lawton 
v.  Lawto/i,  3  Atk.  R.  13,  the  same  doctrine  was  held  in  the  case  of  a 
fire-engine  set  up  to  work  in  a  colliery  by  a  tenant  for  life.  Lord 
Hardwicke  there  said  that  since  the  time  of  Henry  VII.  the  general 
ground  the  courts  have  gone  upon  of  relaxing  the  strict  construc- 
tion of  law  is  that  it  is  for  the  benefit  of  the  public  to  encourage 
tenants  for  life  to  do  what  is  advantageous  to  the  estate  during  the 
term.  He  added,  "  one  reason  which  weighs  with  me  is  its  being  a 
mixed  case,  between  enjoying  the  profits  of  the  land,  and  carrying 
on  a  species  of  trade;  and  in  considering  it  in  this  light  it  comes 
very  near  the  instances  in  brew-houses,  etc.,  of  furnaces  and  coppers." 
The  case,  too,  of  a  cider-mill,  between  the  executor  and  heir,  etc., 
is  extremely  strong,  for  though  cider  is  a  part  of  the  profits  of  the 
real  estate,  yet  it  was  held  by  Lord  Chief  Baron  Comyns,  a  very  able 
common  lawyer,  that  the  cider-mill  was  personal  estate  notwith- 
standing, and  that  it  should  go  to  the  executor.  "  It  does  not  differ 
it,  in  my  opinion,  whether  the  shed  be  made  of  brick  or  wood,  for 
it  is  only  intended  to  cover  it  from  the  weather  and  other  incon- 
veniences." In  Penton  v.  Robart,  2  East,  88,  it  was  further  decided 
that  a  tenant  might  remove  his  fixtures  for  trade  even  after  the 
expiration  of  his  term  if  he  yet  remained  in  possession;  and  Lord 
Kenyon  recognized  the  doctrine  in  its  most  liberal  extent. 

It  has  been  suggested  at  the  bar  that  this  exception  in  favor  of 
trade  has  never  been  applied  to  cases  like  that  before  the  court, 
where  a  large  house  has  been  built  and  used  in  part  as  a  family  resi- 
dence. But  the  question,  whether  removable  or  not,  does  not 
depend  upon  the  form  or  size  of  the  building,  whether  it  has  a  brick 
foundation  or  not,  or  is  one  or  two  stories  high,  or  has  a  brick  or 
other  chimney.  The  sole  question  is  whether  it  is  designed  for 
purposes  of  trade  or  not.  A  tenant  may  erect  a  large  as  well  as  a 
small  messuage,  or  a  soap-boilery  of  one  or  two  stories  high,  and  on 
whatever  foundations  he  may  choose.  In  Lawton  v.  Lawton,  3  Atk. 
R.  13,  lord  Hardwicke  said  (as  we  have  already  seen)  that  it  made 
no  dill'  ren<  e   whether  the  shed  of  the  engine  be  made  of  brick  or 


V.  5-]         FIXTURES:    REMOVAL   BY   TENANT   FOR   YEARS.  317 

stone.  In  Penton  v.  Robart,  2  East's  R.  88,  the  building  had  a  brick 
foundation,  let  into  the  ground,  with  a  chimney  belonging  to  it, 
upon  which  there  was  a  superstructure  of  wood.  Yet  the  court 
thought  the  building  removable.  In  Elwes  v.  Mawe,  3  East's  R. 
38,  Lord  Ellenborough  expressly  stated  that  there  was  no  difference 
between  the  building  covering  any  fixed  engine,  utensils,  and  the 
latter.  The  only  point  is  whether  it  is  accessory  to  carrying  on  the 
trade  or  not.  If  bona  fide  intended  for  this  purpose,  it  falls  within 
the  exception  in  favor  of  trade.  The  case  of  the  Dutch  barns  before 
Lord  Kenyon,  Dean  v.  Allalley,  3  Esp.  11;  Woodfall's  Landlord 
and  Tenant,  219,  is  to  the  same  effect. 

Then,  as  to  the  residence  of  the  family  in  the  house,  this  resolves 
itself  into  the  same  consideration.  If  the  house  were  built  prin- 
cipally for  a  dwelling-house  for  the  family,  independently  of  carry- 
ing on  the  trade,  then  it  would  doubtless  be  deemed  a  fixture, 
falling  under  the  general  rule,  and  immovable.  But  if  the  resi- 
dence of  the  family  were  merely  an  accessory  for  the  more  beneficial 
exercise  of  the  trade,  and  with  a  view  to  superior  accommodation 
in  this  particular,  then  it  is  within  the  exception.  There  are  many 
trades  which  cannot  be  carried  on  well  without  the  presence  of  many 
persons  by  night  as  well  as  by  day.  It  is  so  in  some  valuable  manu- 
factories. It  is  not  unusual  for  persons  employed  in  a  bakery  to  sleep 
in  the  same  building.  Now,  what  was  the  evidence  in  the  present 
case?  It  was,  "  that  the  defendant  erected  the  building  before  men- 
tioned, with  a  view  to  carry  on  the  business  of  a  dairyman,  and  for 
the  residence  of  his  family  and  servants  engaged  in  that  business." 
The  residence  of  the  family  was  then  auxiliary  to  the  dairy;  it  was 
for  the  accommodation  and  beneficial  operations  of  this  trade. 

Surely,  it  cannot  be  doubted,  that  in  a  business  of  this  nature  the 
immediate  presence  of  the  family  and  servants  was,  or  might  be,  of 
very  great  utility  and  importance.  The  defendant  was  also  a  car- 
penter, and  carried  on  his  business  as  such  in  the  same  building.  It 
is  no  objection  that  he  carried  on  two  trades  instead  of  one.  There 
is  not  the  slightest  evidence  of  this  one  being  a  mere  cover  or  evasion 
to  conceal  another,  which  was  the  principal  design;  and  unless  we 
are  prepared  to  say  (which  we  are  not)  that  the  mere  fact  that  the 
house  was  used  for  a  dwelling-house  as  well  as  for  a  trade  superseded 
the  exception  in  favor  of  the  latter,  there  is  no  ground  to  declare  that 
the  tenant  was  not  entitled  to  remove  it.  At  most,  it  would  be 
deemed  only  a  mixed  case,  analogous  in  principle  to  those  before 
Lord  Chief  Barons  Comyns  and  Lord  Hardwicke,  and  therefore 
entitled  to  the  benefit  of  the  exception.  The  case  of  Holmes  v- 
Tremper,  20  Johns.  R.  29,  proceeds  upon  principles  equally  liberal, 


3l8      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

and  it  is  quite  certain  that  the  Supreme  Court  of  New  York  were 
not  prepared  at  that  time  to  adopt  the  doctrine  of  Elwes  v.  Mawe 
in  respect  to  erections  for  agricultural  purposes.  In  our  opinion  the 
Circuit  Court  was  right  in  refusing  the  first  instruction. 

The  second  exception  proceeds  upon  the  ground  that  it  was  not 
competent  to  establish  a  usage  and  custom  in  the  city  of  Washington 
for  tenants  to  make  such  removals  of  buildings  during  their  term. 
We  can  perceive  no  objection  to  such  proof.  Every  demise  between 
landlord  and  tenant  in  respect  to  matters  in  which  the  parties  are 
silent  may  be  fairly  open  to  explanation  by  the  general  usage  and 
custom  of  the  country  or  of  the  district  where  the  land  lies.  Every 
person  under  such  circumstances  is  supposed  to  be  conusant  of  the 
custom,  and  to  contract  with  a  tacit  reference  to  it.  Cases  of  this 
sort  are  familiar  in  the  books;  as,  for  instance,  to  prove  the  right 
of  a  tenant  to  an  away-going  crop.  2  Starkie  on  Evidence,  part 
IV.,  453.  In  the  very  class  of  cases  now  before  the  court  the  cus- 
tom of  the  country  has  been  admitted  to  decide  the  right  of  the 
tenant  to  remove  fixtures.  Woodfall's  Landlord  and  Tenant,  218. 
The  case  before  Lord  Chief  Justice  Treby  turned  upon  that  point. 
Buller's  Nisi  Prius,  34. 

The  third  exception  turns  upon  the  consideration  whether  the 
parol  testimony  was  competent  to  establish  such  a  usage  and  custom. 
Competent  it  certainly  was,  if  by  competent  is  meant  that  it  was 
admissible  to  go  to  the  jury.  Whether  it  was  such  as  ought  to  have 
satisfied  their  minds  on  the  matter  of  fact  was  solely  for  their  con- 
sideration; open,  indeed,  to  such  commentary  and  observation  as 
the  court  might  think  proper  in  its  discretion  to  lay  before  them  for 
their  aid  and  guidance.  We  cannot  say  that  they  were  not  at  liberty, 
by  the  principles  of  law,  to  infer  from  the  evidence  the  existence  of 
the  usage.  The  evidence  might  be  somewhat  loose  and  indetermin- 
ate, and  so  be  urged  with  more  or  less  effect  upon  their  judgment; 
but  in  a  legal  sense  it  was  within  their  own  province  to  weigh  it 
as  proof  of  a  usage. 

The  last  exception  professes  to  call  upon  the  court  to  institute  a 
comparison  between  the  testimony  introduced  by  the  plaintiff  and 
that  introduced  by  the  defendant  against  and  for  the  usage.  It 
requires  from  the  court  a  decision  upon  its  relative  weight  and  credi- 
bility, which  the  court  were  not  justified  in  giving  to  the  jury  in  the 
shape  of  a  positive  instruction. 

Upon  the  whole,  in  our  judgment,  there  is  no  error  in  the  judgment 
of  tin-  Circuil  Court,  and  it  is  affirmed.1 

1  Foi   a   class    "f   cases   in    which   tenant    cannot  remove    trade    fixtures,   see 

(>' /hi,n  v.  K  u  /•'   '  .  xupra,  p.  237.--   Ed. 


V.  5-]  FIXTURES:     REMOVAL   BY    TENANT   FOR   YEARS.  319 

LINAHAN  v.  BARR. 
41  Connecticut,  471.  —  1874. 

Carpenter,  J. — The  sole  question  in  the  first  case  is,  whether  a  ten- 
ant who  erected  a  building  on  leased  property  had  a  right  to  remove 
the  same  at  the  termination  of  his  lease.  The  circumstances  were 
these:  —  The  premises  consisted  of  a  store  in  the  city  of  Bridgeport. 
The  store  burned  down,  leaving  a  vacant  lot.  The  lease  had  then 
about  two  years  to  run.  The  landlord  offered  the  tenant  fifty 
dollars  to  surrender  his  lease,  but  he  declined,  saying  that  he  was 
about  to  erect  another  building  on  the  land,  that  he  knew  that  it 
would  belong  to  the  landlord,  that  he  did  not  intend  to  remove  the 
same  at  the  expiration  of  his  lease,  and  that  the  rent  which  he 
should  receive  during  the  term  would  pay  the  cost  of  construction. 
The  building  was  one-story  high,  built  of  brick,  with  glass  front,  and 
stood  on  the  foundation  walls  of  the  burned  building,  except  the 
rear,  which  was  an  unbroken  brick  wall  from  the  cellar  bottom. 

The  respondent  claims  under  the  lessee,  and  insists  that  the  build- 
ing was  a  trade  fixture  which  might  lawfully  be  removed  by  the 
tenant. 

A  question  is  made  whether  the  declarations  of  the  tenant  were 
admissible  in  evidence.  We  entertain  no  doubt  on  that  question. 
They  tend  directly  to  show  the  intention  of  the  party  in  erecting  the 
building;  and  intention  in  these  cases  is  always  a  material  inquiry. 
Had  the  parties  agreed  that  the  tenant  might  build  and  remove  the 
building,  no  one  would  doubt  that  that  fact  might  be  shown  for  the 
purpose  of  proving  that  it  was  the  personal  property  of  the  builder. 
The  intention  and  understanding  of  the  parties  at  the  time  are  neces- 
sarily involved  in  the  inquiry. 

In  this  case  it  is  apparent  that  both  parties  intended  that  the 
building,  at  the  termination  of  the  lease  should  belong  to  the  owner 
of  the  land.  This  is  evident,  in  the  first  place,  from  the  materials 
used,  and  the  manner  of  construction.  It  was  attached  to  the  free- 
hold in  the  same  manner  that  buildings  ordinarily  are  which  are 
designed  to  be  permanent.  This,  although  not  conclusive,  is  an 
important  consideration.  In  the  next  place,  the  interview  between 
the  parties  at  the  time  very  clearly  shows  that  neither  party  expected 
or  intended  that  the  building  should  be  removed.  In  view  of  all  the 
circumstances  we  think  the  court  below  was  clearly  right  in  holding 
that  the  building  was  a  part  of  the  realty.  Ombony  v.  Jones,  19  N.  Y. 
234;  Shepard  v.  Spalding,  4  Met.  416;  Curtis  v.  Hoyt,  19  Conn.  154; 
Landon  v.  Piatt,  34  Conn.  517;  Capen  v.  Peckham,  35  Conn.  88. 


320      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

The  second  case  was  a  summary  process  to  recover  the  possession 
of  the  leased  premises.  The  only  question  before  the  justice  seems 
to  have  been  whether  the  plaintiff  in  error,  who  claimed  the  building 
by  purchase  from  the  original  lessee,  was  the  lessee  of  the  com- 
plainant. The  court  found  that  he  was,  and  rendered  judgment 
against  him. 

We  fail  to  discover  any  question  of  law  in  the  case  which  this 
court  can  review. 

The  defendant  claimed  that  the  occupation  of  the  premises  while 
he  was  claiming  the  ownership  of  the  building,  and  while  the  injunc- 
tion against  his  removal  of  it  was  in  force,  was  not  an  acceptance  of 
a  proposition  by  the  plaintiff  to  lease  the  premises  to  him  at  a  certain 
rent  named.  The  justice  found  that  he  had  become  a  lessee  of  the 
premises,  that  is,  that  his  conduct  was  such  an  acceptance. 

This  was  a  question  of  fact.  But  even  if  it  can  be  regarded  as  a 
mixed  question  of  law  and  fact,  we  cannot  see  that  the  justice 
violated  any  principle  of  law  in  deciding  as  he  did. 

There  is  no  error  in  either  judgment. 


HOLMES  v.  TREMPER. 
20  Johnson  (N.  Y.),  29.  —  1S22. 


Spencer,  Ch.  J.,  delivered  the  opinion  of  the  court. —  The  ques- 
tion arising  upon  the  pleadings  has  never  been  decided  in  this 
court.     *     *     * 

It  is  admitted,  in  this  case,  that  the  defendant  erected  the  cider-- 
mill  and  press,  at  her  own  cost,  during  her  tenancy,  for  the  purpose  of 
making  the  cider  on  the  farm.  I  confess,  I  never  could  perceive  the 
reason,  justice  or  equity  of  the  old  cases,  which  gave  to  the  landlord 
such  kind  of  erections  as  were  merely  for  the  use  and  convenience 
of  the  tenant,  the  removal  of  which  neither  defrauds  nor  does  the 
least  injury  to  the  landlord.     The  rule  anciently  was  very  rigid;  but 

I  think  it  has  yielded  materially  to  the  more  just  and  liberal  notions 
of  modern    times.      In  Lawton  v.  Laicton,    1   Atk.  13,   the  question 

>e  between  the  tenant  for  life  and  a  remainderman.  The  subject 
<.f  <  ontroversy  was  a  fire-engine,  set  up  by  the  tenant  for  life,  for 
the  benefit  of  a  colliery;  and  the  point  was,  whether  it  should  be 
■  onsidered  as  personal  estate.  It  appeared,  that,  in  building  sheds 
for  securing  tin-  engine,  holes  were  left  for  the  ends  of  timber,  to 
facilitate  removal,  and  they  were  capable  of  being  removed.     Lord 

II  1:  Iwicke,  after  observing  that  the  rigor  of  the   law  was  relaxed 
upon  this  subject,  pronounced  it  a  mixed  case  between  enjoying  the 


V.  5-]         FIXTURES:     REMOVAL    BY   TENANT   FOR   YEARS.  32 1 

profits  of  the  land,  and  carrying  on  a  species  of  trade.  He  adverted, 
with  evident  approbation,  to  a  decision  of  Chief  Baron  Comyns,  at 
the  assizes  at  Worcester,  in  which  the  subject  of  discussion  was  a 
cider-mill,  and  the  question  was  between  the  executor  and  the  heir. 
In  that  case,  it  was  decided,  that  though  cider  is  part  of  the  profits 
of  the  real  estate,  yet  it  was  personal  estate,  notwithstanding,  and 
should  go  to  the  executor.  Lord  Hardvvicke,  in  the  principal  case, 
decided,  that  the  fire-engine  was  personal  estate;  and  he  makes  a 
very  strong  distinction  between  the  rights  of  a  tenant  from  year  to 
year,  as  between  him  and  the  landlord,  and  between  a  tenant  for 
life  and  remainderman.  In  Lawton  v.  Salmon,  1  H.  Bl.  259,  in  the 
notes,  Lord  Mansfield  stated  the  change  that  had  taken  place  in  the 
law,  as  between  landlord  and  tenant.  He  observed  that  many 
things  may  now  be  taken  away  which  could  not  be  formerly;  such 
as  erections  for  carrying  on  any  trade,  marble  chimney-pieces,  and 
the  like,  when  put  up  by  the  tenant.  This,  he  adds,  is  no  injury  to 
the  landlord,  for  the  tenant  leaves  the  premises  in  the  same  state  in 
which  he  found  them,  and  the  tenant  is  benefited. 

In  the  case  of  Culling  v.  Tufnal,  Chief  Justice,  in  1694,  Bull. 
N.  P.  34,  the  tenant  had  erected  a  barn  on  the  premises,  and  put  it 
on  pattens  and  blocks,  but  not  fixed  in,  or  to  the  ground,  and 
removed  it  off;  he  was  held  to  be  justified,  because  it  was  usual  to 
remove  such  buildings  in  that  part  of  the  country.  But  Buller  states, 
that  the  question  would  now  be  determined  in  favor  of  the  tenant 
without  difficulty,  for  that,  of  late  years,  many  things  are  allowed  to 
be  removed  by  tenants,  which  were  not  formerly;  and  he  specially 
instances  cider-mills,  which  the  tenant  may  now  remove.  In  Dean 
v.  Allallev,  3  Esp.  Rep.  11,  Lord  Kenyon  held,  that  the  law  would 
make  the  most  favorable  construction  for  the  tenant,  where  he  had 
made  necessary  and  useful  erections,  for  the  benefit  of  his  trade  or 
manufacture;  and  he  said  it  had  been  held  so,  in  case  of  cider-mills, 
and  in  other  cases;  and  he  should  not  narrow  the  law,  but  hold 
erections  of  that  sort,  made  for  the  benefit  of  trade,  or  constructed 
as  the  sheds  were  in  that  case,  to  be  removable  at  the  end  of  the 
term.  In  the  case  of  Elwes  v.  Mawe,  3  East,  38,  the  buildings 
erected  by  the  tenant,  and  which  he  removed,  were  of  brick  and 
mortar,  and  tiled,  and  the  foundations  were  one  foot  and  a  half 
deep  in  the  ground;  and  Lord  Ellenborough  said,  that  these  were 
fixtures,  and  not  removable,  as  between  landlord  and  tenant.  This 
case  does  not  call  for  any  expression  of  our  opinion  on  the  correct- 
ness of  that  decision,  not  do  we  intend  to  approve  or  disapprove  of 
it.  It  is  very  materially  different  from  the  present  case.  Lord 
Ellenborough  refers  to  the  decision  of  Chief  Baron  Comyns,  in  the 

LAW  OF  PROP.    IN  LAND  —  21 


322      CONSTITUENTS   AND   INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

case  of  the  cider-mill,  he  says  he  may  have  considered  it  a  mixed  case, 
between  enjoying  the  profits  of  the  land,  and  carrying  on  a  species 
of  trade,  and  as  considering  the  cider-mill  as  properly  an  accessory 
to  the  trade  of  making  cider;  and  I  can  see  no  good  reason  why  it 
may  not  thus  be  considered,  for  cider  is  an  article  of  trade.  He 
refers,  also,  to  the  case  before  Chief  Justice  Treby,  and  admits  that 
the  tenant  might  remove  the  barn  on  pattens  and  blocks;  for,  he 
says,  they  were  not  fixed  in  or  to  the  ground,  and  so  they  were  not 
fixtures. 

The  plea  here  states,  that  the  mill  and  press  were  annexed  to,  and 
parcel  of,  the  farm;  but  it  does  not  state  how  they  were  annexed; 
whether  the  mill  was  let  into  the  ground  or  not.  It  states  a  mere 
matter  of  law,  and  not  of  fact.  But  it  is  immaterial  whether  the 
mill  was  let  into  the  ground  or  not.  The  tenant,  in  my  judgment, 
had  an  unquestionable  right  to  remove  it,  as  personal  property. 

The  plaintiff's  counsel  supposes  that  the  tenant  could  not  remove 
this  mill  after  the  end  of  the  term.  It  is  true,  that  if  she  entered 
upon  the  plaintiff's  possession,  and  took  away  the  mill,  she  would 
be  a  trespasser  on  the  soil,  and  answerable  for  breaking  the  close; 
but  leaving  the  mill  there,  if  it  belonged  to  her,  would  not  work  any 
change  of  the  property;  and  in  this  action,  the  trespass  for  entering 
on  the  premises  is  not  in  question;  and  when  it  is  said  that  the 
removal  must  be  within  the  term,  or  else  he  will  be  a  trespasser,  it 
means  only  a  trespasser  as  regards  the  entry. 

Judgment  for  the  defendants. 


(2.)  Agricultural  Fixtures. 

Story,  J.,  in  VAN  NESS  v.  PACARD. 

2  Peter's  (U.  S.).  137. —  1829. 

\Reported  herein  at  p.  312].1 


(3.)  Domestic  Fixtures. 
GAFFIELD  v.  HAPGOOD. 
17  Pickering  (Mass.),  192.  —  1835. 

\  A' 1  ported  herein  at  p.  323.] 


1  ThK  (  asr-  is  oil  trade  fixtures,  but  see  at  pp.  314  and  317  the  discussion   of 
Elwi  \  East  (Eng.),  38,  with  regard  to  agricultural  fixtures.     See  also 

Jlolun;   v.     V"  "!/•>.     nfr.i.  — El). 


V.  5-]  FIXTURES  :    TIME    OF   REMOVAL. 

(4.)  Time  of  Removal  of  Fixtures  by  Tenan 
GAFFIELD  v.  HAPGOOD. 

17  Pickering,  (Mass.),  192. —  1835. 

Trover  to  recover  the  value  of  a  fire-frame  placed  by  one  Bliss  in 
a  house  leased  by  him.  Bliss  sold  the  fire-frame  to  plaintiff  and 
removed  from  the  house  leaving  it  there  in  place.  When  plaintiff 
went  to  remove  it  defendant  (in  possession  under  the  landowner) 
forbade  its  removal.     Nonsuit  ordered  below.      Plaintiff  appeals. 

Putnam,  J.  —  The  fire-frame  was  without  doubt  personal  property 
before  it  was  fixed  to  the  freehold.  But  afterwards  it  became  a 
part  of  the  house,  and  would  have  passed  by  a  deed  of  the  house  as 
a  door  or  window  of  the  house  would  have  passed,  provided  there  were 
no  exception  in  the  deed  to  the  contrary.  But  although  it  is  to  be 
considered  as  a  fixture,  yet  the  lessee  during  the  continuance  of  his 
lease  might  have  removed  it.  Lawton  v.  Lawton,  3  Atk.  16,  in  notis. 
But  he  must  remove  it  during  the  term.  He  cannot  lawfully  do  it 
afterwards.  In  Lee  v .  Risdon,  7  Taunt.  188,  Gibbs,  C.  J.  says,  unless 
the  lessee  uses  the  privilege  of  severing  fixtures  during  the  term  he 
cannot  afterwards  do  it;  adding,  "and  it  never  was  heard  of  that 
trover  could  be  afterwards  brought." 

While  it  remained  fixed  to  the  freehold,  it  is  clear  that  if  one  had 
unfixed  and  taken  it  away  at  one  time,  it  would  not  have  been  a 
felony,  but  a  trespass.  The  case  of  Penton  v.  Robert,  2  East,  88, 
might  seem  to  recognize  the  right  of  the  tenant  to  remove  a  fixture 
after  the  expiration  of  the  term.  That  was  trespass  for  breaking  a 
close  and  removing  a  building.  It  was  brought  by  a  landlord  against 
the  tenant.  The  defendant  made  no  defense  to  breaking  and  enter- 
ing the  close,  and  the  plaintiff  recovered  a  shilling  for  that,  but  the 
defendant  pleaded  a  justification  for  removing  the  building  as  set 
forth  in  the  declaration,  that  it  was  a  building  erected  by  him  on  the 
premises  for  the  purpose  of  carrying  on  his  trade,  and  that  he  still 
continued  in  possession  of  the  premises  at  the  time  when,  etc.  The 
justification  was  held  sufficient.  The  relation  of  landlord  and  tenant 
must  have  been  considered  as  having  continued  and  as  still  existing 
in  respect  to  the  demised  premises  notwithstanding  the  first  term 
had  expired.  The  defendant,  as  it  seems  to  me,  might  and  ought 
to  have  pleaded  the  general  issue  as  to  breaking  and  entering  the 
close  and  a  justification  as  to  the  rest. 

If  the  fixture  should  not  be  removed  during  the  term,  and  the 
tenant  should  quit,  and  the  landlord  should  take  possession  after- 
wards, the  law  is  very  clear,  that  the  fixture  becomes  a  part  of  the 


324      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

freehold,  and  that  the  party  who  was  tenant  cannot  legally  take  it 
away  afterwards. 

And  there  are  no  facts  stated  in  the  present  case  which  will  vary 
this  well-established  rule  of  law. 

The  circumstance  that  the  owner  of  the  estate  offered  it  for  sale 
with  a  reservation  of  the  fire-frame  for  the  tenant,  who  was  then  in 
possession,  is  of  no  avail;  because  the  sale  was  not  made.  The 
tenant  sold  the  fire-frame  to  the  plaintiff  on  the  day  before  he  left 
the  premises.  The  vendee  could  not  be  in  a  better  situation  than 
the  tenant  was.  He  might,  as  has  been  said,  have  severed  the  frame 
from  the  chimney  while  his  tenancy  continued,  but  he  left  the 
premises,  with  the  frame  attached  and  fixed  by  brick  and  mortar  to 
the  house.  It  is  very  certain  that  thereupon  it  became  the  prop- 
erty of  the  owners  of  the  freehold. 

There  are  various  annexations  to  the  freehold  estate,  which,  if  the 
tenant  make  them  at  his  own  expense,  cannot  be  removed  by  him 
during  the  term.  As  if  he  put  glass  into  the  windows;  Co.  Litt. 
53a;  and  the  reason  given  is,  that  the  glass  is  become  part  of  the 
house.  It  shall  go  to  the  heir  and  not  to  the  executor,  for  as  is  said 
in  Herlakenden  s  Case,  4  Co.  R.  62,  if  they  (the  windows)  be  open 
to  tempests  and  rain,  waste  and  putrefaction  of  the  timber  would 
follow.  So  I  apprehend  it  would  be,  if  the  tenant  should  shingle  the 
house,  or  put  another  story  upon  it.  Such  necessary  or  even 
expensive  reparation  or  addition  would,  at  this  day,  be  considered 
as  given  to  the  owner  of  the  freehold. 

But  the  law  has  accommodated  itself  to  the  existing  advanced  state 
of  society,  and  the  tenant  may,  during  the  term,  take  away  chimney- 
pieces,  and  even  wainscot,  if  put  up  by  himself;  Co.  Litt.  ubi  sup. 
(Hargr.  note  5);  which,  as  the  law  stood  before  and  at  the  time  of 
Lord  Coke,  he  could  not  have  been  permitted  to  do. 

The  reason  of  the  relaxation  of  the  rule  is  found  in  the  public 
policy  and  convenience,  which  permit  the  tenant  to  make  the  most 
profitable  and  comfortable  use  of  the  premises  demised,  that  can 
be  obtained  consistently  with  the  rights  of  the  owner  of  the  freehold. 
The  inheritance  is  not  to  be  prejudiced. 

The  law  upon  this  subject  was  very  much  discussed  in  Elwes  v. 
Maiuc,  3  East,  38,  by  the  court  and  bar;  and  such  annexations  made 
with  regard  to  trade,  were  recognized;  but  such  as  were  made  in 
regard  to  agricultural  improvements  were  still  left  to  the  operation 
of  the  old  law;  with  what  correctness  of  inference,  it  is  not  neces- 
sary in  the  case  now  under  consideration  to  decide.  For  this  case 
is  1  lear  of  all  difficulty,  and  is  decided  in  favor  of  the  defendant  for 
the  reasons  before  suggested.  Plaintiff  nonsuit. 


V.  5-]  FIXTURES  :    TIME   OF   REMOVAL.  325 

LOUGHRAN  v.  ROSS. 
45  New  York,  792.  —  1871. 

Action  for  breach  of  covenants  of  seisin  and  of  quiet  enjoyment 
contained  in  a  deed  of  certain  real  estate  made  in  January,  1866, 
by  defendant  to  plaintiff.  Prior  to  May,  1865,  the  premises  had 
been  occupied  under  a  lease  for  a  term  of  years  by  tenants  who  had 
erected  certain  buildings  thereon.  On  the  expiration  of  that  lease 
defendant  had  leased  one  of  the  lots  to  the  former  tenant  (or  to  one 
occupying  under  him)  for  one  year  by  parol,  and  had  demised  the 
other  lot  by  written  lease  to  the  former  tenant  for  a  term  of  three 
years,  to  become  a  lease  from  month  to  month  in  case  of  sale  of 
the  premises. 

After  conveyance  to  plaintiff  and  before  the  1st  of  May,  1866,  the 
buildings  were  removed  by  the  tenants  under  claim  of  right.  This 
removal  and  alleged  right  of  removal  constitutes  the  breaches  of 
covenant  relied  upon  by  plaintiff.  The  trial  court  dismissed  the 
complaint.  This  is  an  appeal  from  an  order  of  the  General  Term 
affirming  such  disposition  of  the  cause. 

Allen,  J. — It  is  not  claimed  by  the  defendant  that  the  tenant 
occupying  the  premises  for  the  terms  ending  on  the  1st  of  May,  1865, 
having  erected  the  buildings  during  their  terms  of  tenancy,  might 
not,  during  the  continuance  of  their  terms  and  their  occupancy  under 
the  first  leases,  have  removed  the  buildings;  and  the  plaintiff  does 
not  deny,  that  after  the  expiration  of  the  terms,  and  the  tenants  had 
ceased  to  occupy  as  tenants,  their  right  to  remove  the  buildings 
would  have  been  lost;  that  a  surrender  of  the  premises  would  have 
been  an  abandonment  of  the  claim  to  the  buildings,  and  they  would 
have  become  the  property  of  the  landlord  as  a  part  of  the  realty. 
The  material  question  in  the  case  is,  as  to  the  effect  of  the  second 
letting  and  occupation  under  it,  after  the  expiration  of  the  first 
leases,  upon  the  rights  of  the  tenants  and  the  ownership  of  the 
building.  The  rule  is,  that  whatever  fixtures  the  tenant  has  a 
right  to  remove  must  be  removed  before  his  term  expires,  except 
when  the  time  at  which  the  term  will  end  is  uncertain,  depending 
upon  a  contingency,  and  it  may  be  determined  unexpectedly  to  the 
tenant,  in  which  case  he  may  be  entitled  to  a  reasonable  time  for 
removing  fixtures  after  the  expiration  of  the  tenancy.  Ellis  v. 
Paige,  1  Pick.  43;  .Reynolds  v.  Shuler,  5  Cow.  323.  The  rule  may  be 
subject  to  the  further  qualification,  that  the  right  to  remove  the 
fixtures  is  not  lost  to  the  tenant  so  long  as  his  possession  as  tenant 
continues;  and   the   claim  of  the   plaintiff  is,  that  this  qualification 


326      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

includes  and  saves  the  right  of  a  tenant  continuing  in  possession 
under  a  new  lease.  The  right  of  the  tenant  to  remove  is  a  privilege 
conceded  to  him  for  reasons  of  public  policy,  and  may  be  waived  by 
him,  and  will  be  regarded  as  abandoned  by  any  acts  inconsistent  with 
a  claim  to  the  buildings  as  distinct  from  the  land,  and  upon  abandon- 
ment of  the  right  by  the  tenant,  fixtures  erected  by  him  immediately 
become  the  property  of  the  landlord  as  a  part  of  the  land.  A  sur- 
render of  the  premises,  after  the  expiration  of  the  lease,  is  such  an 
abandonment  as  vests  the  title  in  the  landlord.  In  reason  and 
principle  the  acceptance  of  a  lease  of  the  premises,  including  the 
buildings,  without  any  reservation  of  right,  or  mention  of  any  claim  to 
the  buildings  and  fixtures,  and  occupation  under  the  new  letting,  are 
equivalent  to  a  surrender  of  the  possession  to  the  landlord  at  the 
expiration  of  the  first  term.  The  tenant  is  under  a  new  tenancy, 
and  not  under  the  old;  and  the  rights  which  existed  under  the 
former  tenancy,  and  which  were  not  claimed  or  exercised,  are  aban- 
doned as  effectually  as  if  the  tenant  had  actually  removed  from  the 
premises,  and  after  an  interval  of  time,  shorter  or  longer,  had  taken 
another  lease  and  returned  to  the  premises.  A  lease  of  lands  and 
premises  carries  with  it  the  buildings  and  fixtures  on  the  premises, 
and  the  tenant,  accepting  a  lease  of  the  premises  without  excepting 
the  buildings,  takes  a  lease  of  the  lands  with  the  buildings  and 
fixtures,  and  acknowledges  the  title  of  the  landlord  to  both,  and  is 
estopped  from  controverting  it.  In  respect  to  the  lot  of  which 
there  was  a  written  lease  for  the  new  term,  the  tenant  expressly 
covenanted  to  surrender  the  premises,  at  the  end  of  the  term,  "  in 
as  good  state  and  condition  as  a  reasonable  use  and  wear  thereof 
will  permit,  damages  by  the  elements  excepted;  "  and  this  covenant 
relates  to  and  includes  the  buildings  then  on  the  premises,  and  if 
they  are  excluded  from  its  operation  it  can  have  no  effect.  It  fol- 
lows that  the  tenant  becoming  a  party  to  that  lease,  and  occupying 
under  it,  is  estopped  from  claiming  the  buildings  as  his  own,  for  he 
has  covenanted  to  surrender  them,  as  a  part  of  the  premises  and 
included  within  the  general  description,  to  the  landlord  at  the  end 
of  the  term,  in  good  repair.  Such  is  also  the  implied  undertaking 
of  the  tenant  taking  a  new  lease  by  parol.  Elementary  writers  are 
very  well  agreed  that,  when  a  tenant  continues  in  possession  under 
a  new  lease  or  agreement,  his  right  to  remove  fixtures  is  determined, 
and  he  is  in  the  same  situation  as  if  the  landlord,  being  seized  of  the 
land  with  the  fixtures,  had  demised  both  to  him.  Taylor's  L.  and 
T.  Qr;  Gibbons'  Law  of  Fixtures,  42;  and  Grady's  Law  of  Fixtures, 
98.  And  it  would  seem  that  the  position  is  warranted  by  authority. 
When  the  tenant  continues   in   possession  after  ejectment  brought 


V.   5-]  FIXTURES:    TIME   OF    REMOVAL.  327 

by  the  landlord,  under  an  arrangement  with  him,  and  with  his  assent 
to  a  stay  of  execution,  the  tenant's  right  to  remove  buildings  from 
the  premises,  erected  by  himself  during  his  lease,  is  gone.  Fitzher- 
bert  v.  Shaw,  1  H.  Black.  258.  The  court  held  that  there  was  an 
implied  agreement  that  the  tenant  should  deliver  up  the  premises  in 
the  same  condition  as  they  were  in  when  the  agreement  was  made. 
The  same  was  held  in  Heap  v.  Barton,  12  C.  B.  274,  Jervis,  Ch.  J., 
saying:  "  If  the  tenants  meant  to  avail  themselves  of  their  continu- 
ance in  possession  to  remove  the  fixtures,  they  should  have  said  so." 
The  general  form  of  expressing  the  right  of  the  tenant  to  remove 
fixtures,  is  that  they  must  be  removed  within  the  term;  that  is,  the 
term  during  which  they  were  erected,  and  unless  the  lessee  uses, 
during  the  lease,  the  privilege  to  sever  them,  he  cannot  afterwards 
do  it.  Lee  v.  Risdon,  7  Taunt.  188;  Lyde  v.  Russell,  1  B.  &  Ad. 
394.  But  it  may  be  done  so  long  as  the  possession  continues, 
although  the  term  may  have  ended,  if  there  has  been  no  new  agree- 
ment. Penton  v.  Robert,  2  East,  88.  A  case  somewhat  analogous  in 
principle  to  this  was  that  of  Thresher  v.  Proprietors  of  the  East  London 
Water  Works,  2  B.  &  C.  608,  in  which  it  was  decided  that  a  lessee, 
who  had  erected  fixtures,  for  the  purposes  of  trade,  upon  the  demised 
premises,  and  afterwards  took  a  new  lease,  to  commence  at  the  expi- 
ration of  the  former  one,  which  new  lease  contained  a  covenant  to 
repair,  was  bound  to  repair  those  fixtures,  unless  strong  circum- 
stances existed  to  show  that  they  were  not  intended  to  pass  under  the 
general  words  of  the  second  demise,  and  a  doubt  was  expressed 
whether  any  circumstances,  dehors  the  deed,  could  be  alleged  to 
show  that  they  were  not  intended  to  pass. 

Alderson,  B.,  in  Weeton  v.  Woodcock,  7  M.  &W.14,  says:  "The rule, 
to  be  collected  from  the  several  cases  decided  seems  to  be  this;  that 
the  tenant's  right  to  remove  fixtures  continues  during  his  original 
term,  and  during  such  further  period  of  possession  by  him,  as  he 
holds  the  premises  under  a  right  still  to  consider  himself  a  tenant," 
and  the  right  to  remove  the  fixtures  was  denied  to  the  assignees 
of  the  tenant,  although  they  retained  the  possession,  the  plaintiff 
having  made  an  entry  to  enforce  a  forfeiture.  See  also  Minshall  v. 
Lloyd,  2  M.  &  W.  450;  Shepard  v.  Spaulding,  4  Mete.  416.  The 
tenants,  holding  under  a  new  demise,  had  not  the  legal  right  to 
remove  the  fixtures  put  by  them  on  the  premises  during  a  former 
term,  there  being  no  mention  of  the  right  in  the  second  lease. 
The  offer  to  prove  that,  by  custom  in  the  city  of  New  York,  tenants 
had  a  right  to  remove  buildings,  did  no  go  beyond  the  right  con- 
ceded by  the  defendant.  The  evidence,  therefore,  if  otherwise  com- 
petent, could  not  have  aided  the  plaintiff. 


328       CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.  CH.  II. 

The  difficulty  is,  that  the  conceded  right  was  abandoned  and  lost 

by  its  non-exercise  during  the   tenancy  under  which  the  buildings 

were  erected.     The  remedy  of  the  plaintiff  was  against  the  persons 

wrongfully  removing    the    buildings,   and   not  on    the    defendant's 

covenant. 

Judgment  affirmed. 


Peckham,  J.,  in  LEWIS  v.  OCEAN    NAVIGATION    AND  PIER 

COMPANY. 

125  New  York,  341  (349).  —  1891. 

*  *  *  If  the  evidence  under  discussion  had  been  received  and 
submitted  to  the  jury,  the  fact  of  a  waiver  of  this  right  to  claim  a  for- 
feiture might  have  been  found,  and  the  case  would  then  be  that  of  a 
tenant  with  a  right  to  remove  a  fixture  at  the  termination  of  his  lease, 
holding  over  after  such  termination,  and  on  being  evicted  by  sum- 
mary proceedings  on  account  of  such  holding  over,  claiming  and  being 
refused  the  right  to  take  such  fixture  with  him.  The  defendant 
claims  the  tenant  has  no  such  right  after  the  termination  of  the 
tenancy.  He  urges  that  the  right  must  be  exercised  during  the 
running  of  the  term,  and  if  delayed  longer  than  that  time,  even 
though  the  tenant  remain  in  possession  he  cannot  remove  the  fixture. 
I  think  no  such  absolute  rule  exists  in  this  State.  In  Dubois  v.  Kelly, 
10  Barb.  496,  it  was  held  that  the  right  which  a  tenant  has  by  agree- 
ment with  the  landlord  to  remove  such  buildings  as  he  may  erect  for 
the  purpose  of  his  tenancy,  remains  with  the  tenant  after  his  term 
expires  and  while  he  still  remains  in  possession  of  the  premises.  In 
Qmbony  v.  Jones,  19  N.  Y.  234,  although  the  opinion  in  the  Dubois 
Case  was  somewhat  criticised  upon  the  question  as  to  what  things  a 
tenant  had,  in  the  absence  of  agreement,  a  legal  right  to  remove 
from  the  land  to  which  they  had  been  affixed,  yet  the  question  as  to 
the  time  of  such  removal  (while  the  tenant  still  remained  in  pos- 
session) was  not  criticised  or  discussed.  It  has  not  been  denied, 
that  I  can  find,  in  any  case  here.  The  title  of  the  landlord  to  fix- 
tures which  the  tenant  has  left  after  the  expiration  of  the  term  and 
after  his  delivery  of  possession,  and  which  the  tenant  would  other- 
wise have  had  the  right  to  remove,  is  based  upon  the  presumption  of 
abandonment  by  the  tenant  to  the  landlord.  No  such  presumption 
can  attach  so  long  as  the  tenant  remains  in  possession.  In  Loughran 
v.  Ross,  45  N.  Y.  792,  it  was  held  that  where  a  tenant  had  a  right  to 
remove  fixtures  erected  by  him  on  the  demised  premises,  yet  if  he 
accepted  a  new  lease  of  the  premises  including  such  fixtures  without 


V.   5]  FIXTURES:    TIME    OF    REMOVAL.  329 

reservation  or  mention  of  any  claim  to  them,  and  entered  upon  a 
new  term  under  the  new  lease,  he  lost  the  right  of  removal,  even 
though  his  possession  had  been  continuous.  The  decision  in  that 
case  was  placed  upon  quite  technical  reasoning,  supported  it  is  true 
by  some  authorities,  but  it  is  not  one  of  those  cases  whose  principle 
should  be  extended.  The  taking  of  a  new  lease  where  nothing  is 
said  as  to  the  fixtures  is  equivalent,  it  is  said,  to  a  surrender  of  the 
premises  as  they  exist  to  the  landlord,  and  a  taking  of  the  premises 
from  him  in  the  same  condition,  which  at  the  end  of  the  lease  the 
tenant  is  bound  to  surrender.  What  can  be  said  on  the  other  side 
of  this  question  has  been  urged  by  Mr.  Justice  Cooley  in  Kerr  v. 
Kingsbury,  39  Mich.  150,  and  in  Second  National  Bank  v.  Merrill  Co., 
69  Wis.  501.  See  also  title  "  Fixtures,"  vol.  8,  page  63,  Am.  &  Eng. 
Enc.  of  Law.  But  where  there  has  been  no  acceptance  of  a  new 
lease,  and  the  tenant  has  simply  continued  in  possession  after 
expiration  of  his  term,  the  better  authority  seems  to  be  decidedly 
in  favor  of  his  right  to  remove  the  fixtures  while  he  remains  in  pos- 
session in  his  character  as  tenant.  Taylor's  Landlord  and  Tenant 
(8th  ed.),  sec.  551 ;  Penton  v.  Robert,  2  East,  88;  IVeeton  v.  Woodcock, 
7  Mees.  &  W.  14;  Dubois  v.  Kelley,  supra.  Penton  v.  Roberts  has 
been  somewhat  unfavorably  critcised  in  England,  but  the  particular 
point  in  question  has  not  been  directly  overruled  that  I  have  seen. 
Although  the  plaintiff  was  holding  over  subsequent  to  September, 
1885,  yet  he  was,  nevertheless,  still  in  possession  by  reason  of  the 
original  leasing.  And  even  in  the  case  of  Loughran  v.  Ross,  supra, 
Judge  Allen  says,  the  removal  may  be  made  so  long  as  the  posses- 
sion continues,  although  the  term  may  have  ended,  if  there  has  been 
no  new  agreement.  See  also  Clark  v.  Howland,  85  N.  Y.  204. 
There  is  no  reason  why  the  right  should  be  lost  before  he  quits  pos- 
session as  tenant,  even  though  he  holds  over.  The  rule  is  based 
upon  a  question  of  public  policy,  which  suggests  that  the  tenant 
shall  remove  during  his  term,  i.  c.  while  in  possession  as  a  tenant, 
whatever  he  has  the  right  to  remove  at  all,  so  that  the  landlord  may 
be  himself  protected  and  so  that  the  tenant  shall  not  be  permitted, 
after  his  surrender  of  possession,  to  enter  upon  the  possession  of  the 
landlord  or  his  succeeding  tenant  and  remove  what  he  might  "have 
taken  before,  but  which  by  leaving  he  has  tacitly  abandoned,  and 
which  the  landlord  may  already  have  let  to  his  succeeding  tenant. 
A  regard  for  such  succeeding  interests  requires  the  adoption  of  a 
rule  necessitating  the  removal  of  fixtures  during  the  time  of  posses- 
sion, but  not  in  all  cases  during  the  running  of  the  term.     *     *     * 


330      CONSTITUENTS   AND    INCIDENTS    OF    LAND.     [PT.  II.   CH.  II. 

TALBOT  v.  CRUGER. 
151  New  York,  117.  —  1896. 

Gray,  J. — The  plaintiff  seeks  to  recover  damages,  which  she 
claims  to  have  sustained  "  through  the  fraud  and  deceit  of  the 
defendants  in  procuring  from  her  a  surrender  of  her  house  by  falsely 
representing  to  her  that  the  paper  they  presented  to  her  for  execu- 
tion, and  which  she  signed,  was  a  lease  of  the  land  on  which  the 
house  stood."  The  defendants  are  the  agents  of  a  former  owner 
of  the  land  and  a  purchaser  of  the  land  at  a  judicial  sale.  The 
plaintiff,  in  her  complaint,  alleged  that  by  agreement  with  Mrs. 
Field,  in  August,  1888,  she  became  a  tenant  from  year  to  year  of 
certain  lands  in  New  York  city,  at  a  certain  yearly  rental,  and  that 
at  the  same  time  she  became  the  owner,  by  purchase  at  an  execu- 
tion sale,  of  certain  buildings  which  had  been  placed  upon  the  lands 
by  a  former  tenant.  It  seems  that  in  May,  1891,  and  as  the  result 
of  certain  judicial  proceedings,  the  lands  were  directed  to  be  sold 
and  were  purchased  by  defendant  Coffey.  Coffey,  finding  the  plain- 
tiff in  occupation  and  claiming  to  own  the  buildings,  complained  to 
the  defendants  Cruger  &  Co.,  who  had  been  the  agents  of  Mrs. 
Field,  and  they  endeavored,  at  first  to  get  a  lease  from  Coffey  to 
plaintiff  and,  not  succeeding  in  that,  then  obtained  the  signature  of 
plaintiff  to  a  writing  surrendering  her  house  for  the  compensation 
of  $25.  She  says  she  was  unable  to  read  the  paper  and  did  not  have 
its  real  purport  made  known  to  her  and  supposed  she  was  signing  a 
new  lease  of  the  property.  She  elects  to  affirm  the  transaction, 
however;  but  insists  upon  her  right  to  maintain  her  action  for  dam- 
ages, upon  the  ground  that  by  the  fraudulent  devices  of  the  defend- 
ant she  was  cheated  out  of  that  which  was  her  personal  property. 

This  appeal  must  be  determined  by  the  question  of  whether  the 
plaintiff  had  any  property  in  the  buildings  upon  the  land,  and  for  that 
we  are  limited  to  the  case.  They  consisted  in  a  house,  shed,  closet, 
and  fence,  and  under  the  general  rule  would  partake  of  the  incidents 
and  properties  of  realty.  That  is  the  general  maxim  of  the  law,  and 
if  there  be  an  agreement  with  the  owner  of  the  land,  by  which  the 
tenant's  distinct  ownership  of  the  buildings  is  recognized  and  his 
right  to  remove  them  conceded,  it  must,  of  course,  be  proved  by 
him.  The  legal  presumption  based  upon  the  rule  must  be  disproved 
by  affirmative  evidence  on  the  part  of  the  tenant.  The  right  of  a 
tenant  to  remove  fixtures  erected  for  trade  is  conceded  to  him  for 
reasons  of  public  policy,  and,  being  in  the  nature  of  a  privilege,  it 
must  be  exercised   before  the  expiration  of  the  term,  or  before  he 


V.  5-]  FIXTURES:    TIME    OF    REMOVAL.  33 1 

quits  possession.  If  the  right  to  remove  other  fixtures  exists  by 
virtue  of  some  agreement,  then  it  must  be  exercised  in  like  manner. 
By  entering  upon  a  new  lease,  in  which  the  tenant's  rights  are  not 
reserved,  the  rights  which  may  have  existed  under  the  former 
tenancy  are  determined,  and  this  is  true  even  where  there  is  a  con- 
tinuous holding  of  the  premises,  but  not  under  the  same  lease. 
A  tenant  may  remain  in  possession  after  the  old  lease  has  expired; 
but  unless  he  reserves  the  right  under  the  new  lease  to  remove  the 
fixtures  upon  the  land,  the  right  will  be  deemed  to  have  been  aban- 
doned and  they  will  become  the  property  of  the  landlord.  Taylor's 
Landlord  and  Tenant,  sees.  551,  552;  Loughran  v.  Ross,  45  N.  Y.  792; 
Watriss  v.  First  National  Bank,  124  Mass.  571. 

In  this  case,  the  plaintiff  claims  to  have  become  the  owner  of  the 
buildings  by  purchase,  and  that  through  an  arrangement  between 
Hyland,  who  had  erected  them,  and  Mrs.  Field,  the  then  owner  of 
the  land,  it  was  agreed  that  they  should  be  and  remain  Hyland's 
personal  property  and  subject  to  his  right  to  remove  them.  Assum- 
ing these  facts  to  be  true,  there  is  the  difficulty  that  the  plaintiff  did 
not  prove  that  she  herself  made  any  agreement  with  the  landowner, 
when  she  became  the  tenant  of  the  premises.  Hyland,  or  the 
plaintiff,  very  possibly,  may  have  been  entitled  to  exercise  the  right 
of  removal  before  the  expiration  of  Hyland's  tenancy;  but  it  would 
not  necessarily  follow,  when  the  plaintiff  went  into  possession  under 
a  lease  from  the  landowner,  that  that  right  continued  in  force.  It 
was  incumbent  upon  her  to  establish  that  she  had  made  some  arrange- 
ment with  Mrs.  Field,  which  conceded  to  her  such  interests  and 
rights  of  ownership  in  the  buildings  as  would  authorize  her  to  claim 
them  as  her  distinct  property  and  to  remove  them  from  the  land 
while  her  tenancy  lasted.  There  is  no  evidence  as  to  the  terms  of 
the  plaintiff's  tenancy  under  Mrs.  Field  and  even  if  Cruger  &  Co., 
who  acted  as  Mrs.  Field's  agents,  regarded,  or  treated  the  plaintiff 
as  the  owner  of  the  buildings,  that  does  not  prevent  them  from 
objecting  thereafter  that  she  was  not,  and  that  she  was  bound  to 
prove  the  fact  in  such  an  action  as  this.  The  case  comes  down  to 
this,  that,  although  the  plaintiff  at  some  prior  time  had  become 
the  owner  of  the  buildings,  she  did  not  show  that  by  the  terms  of  the 
lease  of  the  land  to  her,  or  by  any  agreement  she  made  with  the 
lessor,  her  rights  were  saved  from  the  operation  of  the  general  rule, 
which  vests  in  the  owner  of  the  land  the  property  in  fixtures  not 
removed  before  the  expiration  of  the  term,  or  the  surrender  of  pos- 
session; and  that,  during  her  own  yearly  tenancy,  she  at  all  times 
remained  the  owner  of  these  buildings  and  had  the  right  to  remove 
them  as  her  property.     In  the  absence  of  such  proof,  the  plaintiff 


$12      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CM.  II. 

was  in  no  position  to  assert  this  claim  for  damages.  Unless  she 
owned  the  buildings,  which  she  says  the  defendants,  by  fraudulent 
devices  induced  her  to  surrender  possession  of,  she  could  not  be 
damaged  by  what  they  did  in  the  matter.  In  this  view  of  the  case, 
the  direction  of  a  verdict  for  the  defendants  was  correct.  There 
was  no  foundation  for  a  recovery  by  the  plaintiff. 

The  principal  assignment  of  error  in  the  rulings  of  the  trial  judge 
was  with  respect  to  his  exclusion  of  evidence  to  show  what  was  the 
arrangement  between  Hyland,  who,  when  tenant,  put  up  the  build- 
ings in  question,  and  the  then  agent  of  Mrs.  Field.  Assuming  that 
the  arrangement  comprehended  his  right  to  remove  the  buildings, 
that  fact  would  not  aid  the  plaintiff.  The  material  fact  for  her  to 
prove,  in  order  to  establish  that  she  had  an  interest  in  the  buildings, 
which  had  not  been  lost,  was  that  she  had  made  an  arrangement 
with  the  owner  of  the  land  which  preserved  to  her  the  right  of 
removal.  It  was  immaterial  what  Hyland  had  the  right  to  do,  as 
long  as  he  had  not  exercised  it,  or  if  it  had  not  been  extended 
to  her.  No  other  question  demands  further  consideration  and,  for 
the  reasons  given,  the  judgment  should  be  affirmed,  with  costs. 


KERR  v.  KINGSBURY. 
39  Michigan,  150.  —  1878. 

Suit  to  foreclose  a  mortgage  given  by  defendant  Kingsbury  to 
complainant's  testator.  Complainant  claims  certain  buildings 
erected  prior  to  the  mortgage  as  part  of  the  realty;  defendant  Lyon 
claims  the  same  buildings  as  "  tenant's  fixtures,"  under  certain 
leases. 

The  original  leases  were  given  to  expire  ten  years  from  June  1, 
1871.  Lessees  were  to  have  thirty  days  after  the  termination  in 
which  to  remove  any  buildings  they  might  erect.  In  February,  1874, 
defendant  Kingsbury  deeded  the  land  to  G.  P.  K.  This  deed  was 
not  recorded.  In  March,  1874,  defendant  gave  the  mortgage  in 
question.  In  January,  1876,  G.  P.  K.  gave  the  tenants  a  new  lease 
for  five  years  and  five  months,  including  also  certain  lands  not 
red  by  the  original  leases.  The  tenants  became  insolvent  and 
m:ide  an  assignment  to  Lyon  for  the  benefit  of  their  creditors. 
sion  fur  Lyon.     Complainants  appeal. 

Coolky,  J.  *  *  *  In  brief,  the  claim  on  the  part  of  the  com- 
plainants  thai  when  Kingsbury  &  Bennett,  in  January,  1876,  accepted 
from  <i.  !'.  Kingsbury  a  new  lease,  they  in  contemplation  of  law  sur- 
rendered  the  existing  leases,  and  not   having  asserted  and  exercised 


V.   5]  FIXTURES  :    TIME   OF   REMOVAL.  333 

a  right  to  remove  the  erections  made  previously,  they  thereby  aban- 
doned them  to  their  landlord,  and  could  not  assert  or  transfer  to 
any  one  else  the  right  to  remove  them  afterwards.  This  is  the 
principal  question  in  the  case. 

The  right  of  a  tenant  to  remove  the  erections  made  by  him  in  fur- 
therance of  the  purpose  for  which  the  premises  were  leased  is  con- 
ceded. The  principle  which  permits  it  is  one  of  public  policy,  and 
has  its  foundation  in  the  interest  which  society  has  that  every  person 
shall  be  encouraged  to  make  the  most  beneficial  use  of  his  property 
the  circumstances  will  admit  of.  On  the  other  hand,  the  require- 
ment that  the  tenant  shall  remove  during  his  term  whatever  he  pro- 
poses to  claim  a  right  to  remove  at  all,  is  based  upon  a  corresponding 
rule  of  public  policy,  for  the  protection  of  the  landlord,  and  which 
is  that  the  tenant  shall  not  be  suffered,  after  he  has  surrendered  the 
premises,  to  enter  upon  the  possession  of  the  landlord  or  of  a  suc- 
ceeding tenant,  to  remove  fixtures  which  he  might  and  ought  to 
have  taken  away  before.  A  regard  for  the  succeeding  interests  is 
the  only  substantial  reason  for  the  rule  which  requires  the  tenant  to 
remove  his  fixtures  during  the  term;  indeed,  the  law  does  not  in 
strictness  require  of  him  that  he  shall  remove  them  during  the  term, 
but  only  before  he  surrenders  possession,  and  during  the  time  that 
he  has  a  right  to  regard  himself  as  occupying  in  the  character  of 
tenant.  Penton  v.  Robart,  2  East,  88;  Weetotiv.  Woodcock,  7  M.  & 
W.,  14. 

But  why  t-he  right  should  be  lost  when  the  tenant,  instead  of  sur- 
rendering possession,  takes  a  renewal  of  his  lease,  is  not  very 
apparent.  There  is  certainly  no  reason  of  public  policy  to  sustain 
such  a  doctrine;  on  the  contrary,  the  reasons  which  saved  to  the 
tenant  his  right  to  the  fixtures  in  the  first  place  are  equally  influential 
to  save  to  him  on  a  renewal  what  was  unquestionably  his  before. 
What  could  possibly  be  more  absurd  than  a  rule  of  law  which  should 
in  effect  say  to  the  tenant  who  is  about  to  obtain  a  renewal:  "  If 
you  will  be  at  the  expense  and  trouble,  and  incur  the  loss,  of  remov- 
ing your  erections  during  the  term,  and  of  afterwards  bringing  them 
back  again,  they  shall  be  yours;  otherwise,  you  will  be  deemed  to 
abandon  them  to  your  landlord." 

There  are  some  authorities  which  lay  down  this  doctrine.  Merriti 
v.  Judd ,  14  Cal.  59,  is  directly  in  point.  That  case  is  decided  in 
reliance  upon  previous  decisions  which  do  not  appear  to  us  to  war- 
rant it.  Fitzherbert  v.  Shaw,  1  H.  Bl.  258,  was  a  case  in  which 
ejectment  having  been  brought  against  the  tenant,  he  entered  into 
an  agreement  that  judgment  should  be  signed  at  a  certain  time  with 
stay  of  execution  for  a  period;  and  the  decision  that  the  tenant 


334      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.  CH.  II. 

could  not  afterwards  remove  fixtures  was  based  upon  the  agreement. 
Lyde  v.  Russell,  i  B.  &  Ad.  394,  only  asserts  the  general  rule  that 
where  the  tenant  surrenders  possession  without  removing  his  fixtures 
he  loses  his  right.  Thresher  v.  East  London,  2  B.  &  C.  608,  was 
decided  upon  the  construction  of  a  covenant  contained  in  the  new 
lease,  by  which  the  tenant  undertook  to  repair  the  erections  and 
buildings,  and  at  the  end  of  the  term  the  premises  so  repaired,  etc., 
to  leave  and  yield  up,  etc.  Shepard  v.  Spaulding,  4  Met.  416,  has 
some  apparent  analogy  to  the  present  case,  but  it  is  only  apparent. 
There  the  tenant  surrendeed  to  his  landlord  without  removing  the 
fixtures  in  controversy,  but  undertook  to  assert  the  right  under  a 
lease  made  several  years  afterwards,  and  which  he  took  when  he 
was  as  much  a  stranger  to  the  premises  as  if  he  had  never  occupied 
them.  It  is  manifest  that  none  of  these  cases  affords  any  sup- 
port to  the  conclusion  in  Merritt  v.  Judd.  And  we  have  been 
unable  to  discover  in  Landon  v.  Piatt,  34  Conn.  517;  Davis  v. 
Moss,  38  Penn.  St.  346,  or  Haflick  x .  Stober,  11  Ohio  (N.  S.),  482, 
to  which  our  attention  is  called  in  this  case,  anything  important  to 
this  discussion. 

The  case  of  Loughran  v.  Ross,  45  N.  Y.  792,  is  in  accord  with 
the  case  in  California.  In  that  case  Mr.  Justice  Allen,  speaking  for 
the  majority  of  the  court,  says:  "  In  reason  and  principle  the 
acceptance  of  a  lease  of  the  premises,  including  the  buildings,  with- 
out any  reservation  of  right,  or  mention  of  any  claim  to  the  buildings 
and  fixtures  and  occupation  under  the  new  letting,  are  equivalent  to 
a  surrender  of  the  possession  to  the  landlord  at  the  expiration  of  the 
first  term.  The  tenant  is  in  under  a  new  tenancy,  and  not  under  the 
old;  and  the  rights  which  existed  under  the  former  tenancy,  and 
which  were  not  claimed  or  exercised,  are  abandoned  as  effectually 
as  if  the  tenant  had  actually  removed  from  the  premises,  and  after 
an  interval  of  time,  shorter  or  longer,  had  taken  another  lease  and 
returned  to  the  premises."  This  is  perfectly  true  if  the  second  lease 
includes  the  buildings;  but  unless  it  does  so  in  terms  or  by  neces- 
sary implication,  it  is  begging  the  whole  question  to  assume  that  the 
lease  included  the  buildings  as  a  part  of  the  realty.  In  our  opinion 
it  ought  not  to  be  held  to  include  them  unless  from  the  lease  itself 
a;i  understanding  to  that  effect  is  plainly  inferable. 

In  Davis  v.  Moss,  38  Penn.  St.  346,  353,  it  is  said  by  Mr.  Justice 
Woodward  that  "if  a  tenant  remain  in  possession  after  the  expira- 
tion of  his  term,  and  perform  all  the  conditions  of  the  lease,  it 
amounts  to  a  renewal  <>f  the  lease  from  year  to  year,  and  I  take  it  he 
would  be  entitled  to  remove  fixtures  during  the  year."  This  in  our 
opinion    is   perfei  tly   reasonable,   and   it  is  as  applicable   to   other 


V.   5-]  FIXTURES:    TIME    OF    REMOVAL.  335 


tenancies    as  it    is    to  those    from  year  to  year  which  are   implied 

from  mere  permissive  holding  over.     *     *  * 

We  think  the  decree  below  was  correct,  and  it  must  be  affirmed 
with  costs. 


WHITE  v.  ARNDT. 

1  Wharton  (Pa.),  91.  —  1835. 


Action  for  rent  by  Abraham  Arndt  against  William  White. 

Jacob  Arndt  devised  the  premises  in  question  to  his  wife  for  life, 
remainder  in  fee  to  this  plaintiff.  Mrs.  Arndt  remarried,  and  together 
with  her  husband,  in  July,  1829,  leased  the  premises  to  White  for  a 
term  of  three  years.  The  life  tenant  died  in  December,  1829.  White 
continued  in  possession  of  the  premises  until  April  1,  1832.  This 
action  is  for  the  last  quarter's  rent. 

On  the  trial  White  offered  to  prove  that  he  had  erected  certain 
buildings  upon  the  premises  under  an  agreement  with  the  life  tenant 
that  he  should  have  liberty  to  remove  some  of  them  and  that  the 
others  should  betaken  by  the  owners  of  the  land  at  a  valuation,  etc. 
Under  objection,  this  evidence  was  excluded.  Arndt  sold  the  prem- 
ises at  public  auction  in  February,  1832.  White  offered  to  prove 
that  at  time  of  the  sale  he  desired  to  give  notice  of  his  claim  to  the 
buildings,  which  Arndt  would  not  permit.  Excluded.  Verdict  for 
plaintiff  below.     White  brings  the  case  on  error  to  this  court. 

Rogers,  J.  — It  is  a  general  rule  of  the  common  law,  that  what- 
ever is  annexed  to  the  inheritance  during  the  tenancy,  becomes  so 
much  a  part  of  it,  that  it  cannot  be  removed  by  the  tenant,  although 
the  improvements  may  have  been  made  at  his  own  expense.  As  in 
Warner  v.  Fleehvood,  4  Rep.  63,  glass  put  in  by  the  tenant,  or  wain- 
scot fastened  by  nails,  was  held  part  of  the  inheritance.  To  this 
rule  there  are  certain  exceptions,  nearly  as  old  as  the  rule  itself,  as 
between  landlord  and  tenant,  that  whatever  buildings  or  other 
fixtures  are  erected  for  the  purpose  of  carrying  on  trade  or  manu- 
factures, may  be  removed  by  the  tenant  during  the  term.  The 
cases  upon  this  subject  are  collected  by  Lord  Ellenborough,  in 
Elwes  v.  Mawe,  3  East,  38,  and  by  Mr.  Justice  Story,  in  Van  Ness  v. 
Packard,  2  Peters'  Rep.  145.  As  to  substantial  improvements,  they 
are  usually  made  a  consideration  for  extending  the  term  of  the 
lease;  or  some  collateral  agreement  is  made,  so  as  to  allow  of 
some  compensation  to  the  tenant.  The  latter  was  the  course 
adopted  by  the  parties  to  this  contract.  The  tenant,  White,  erected 
on  the  premises    several   improvements,  among  which  was  a  stable, 


336       CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

and  two  shops,  which  it  is  said  greatly  enhanced  the  value.  It  was 
agreed  at  or  about  the  time  of  the  erection  of  these  improvements, 
between  White  and  Mr.  and  Mrs.  Lloyd,  who  had  an  estate  for  life, 
that  White  was  to  have  the  liberty  of  selling  or  removing  the  stable, 
and  that  the  barber's  shop,  and  other  small  buildings  erected  by  him 
were  to  be  taken  at  a  valuation;  and  that  if  a  valuation  should  not 
be  agreed  on,  White  was  to  have  the  privilege  of  removing  the 
materials  of  the  shops.  As  between  the  parties  to  this  contract, 
this  agreement  was  a  good  consideration;  and  any  violation  of  it  on 
the  part  of  Lloyd  would  have  subjected  him  to  an  action.  And  I 
am  inclined  to  believe,  on  the  authority  of  Van  Ness  v.  Packard, 
that  if  the  estate  of  Lloyd  had  continued  until  the  end  of  the  term, 
White  would  have  had  a  right  to  remove  the  buildings  from  the 
premises,  without  the  consent  of  the  owner  of  the  remainder  not- 
withstanding the  general  principle,  that  whatever  is  annexed  to  the 
freehold,  becomes  part  of  it,  and  cannot  afterwards  be  removed, 
except  by  him  who  is  entitled  to  the  inheritance.  The  exception  in 
favor  of  trade,  which  is  founded  on  public  policy,  and  intended  to 
encourage  manufactures  and  the  improvements  of  the  country,  may 
well  apply  to  this  case;  for  the  question  does  not  depend  upon  the 
size  or  form  of  the  house,  or  the  manner  in  which  it  is  built;  but  the 
only  inquiry  always  is,  whether  it  was  intended  for  purposes  of  trade 
or  not;  and  I  cannot  believe  that  the  nature  of  the  business,  whether 
agricultural  or  mercantile,  can  make  any  difference.  But  while 
these  principles  are  conceded,  I  am  unwilling  to  extend  them 
beyond  the  duration  of  the  estate  which  the  tenant  for  life  has  in  the 
premises,  so  as  to  subject  the  owner  of  the  fee  to  payment  for 
the  buildings,  or  to  compel  him  to  allow  them  to  be  removed.  In 
the  case  at  bar,  Lloyd's  interest  was  in  right  of  his  wife,  who  had  a 
life  estate.  On  her  death,  the  interest  in  possession  vested  in 
Arndt,  the  owner  of  the  remainder  in  fee. 

The  death  of  Mrs.  Lloyd  put  an  end  to  White's  lease.  Now,  there 
is  no  principle  better  established  by  authority,  than  that,  even,  as 
between  landlord  and  tenant,  fixtures  must  be  removed  during  the 
term.  After  the  term  they  become  inseparable  from  the  freehold, 
and  can  neither  be  removed  by  the  tenant,  nor  recovered  by  him  as 
personal  chattels,  by  an  action  of  trover,  or  for  goods  sold  and  deliv- 
ered, i  Atk.  477;  Ex  parte  Quincy,  3  Atk.  13;  Lamb  v.  Lamb,  and  the 
note,  2  Peters'  R. ;  Lord  Dudley  v.  Lord  Ward,  Ambl.  113;  Co.  Lit. 
53a;  Brooke,  Waste,  104,  142;  Coopers  Case,  Moore,  177;  Day  v. 
DisHtch^  Cro.  E.  374;  Lord  Derby  v.  Asquith,  Hob.  235;  4  Term 
Rep.  7455  7  Term  Rep.  157. 

It  lias  hrcii   contended   by  the  counsel  for  the  plaintiff  in  error, 


V.  5-]  FIXTURES:     TIME   OF   REMOVAL.  337 

that  the  tenant  for  life  can  bind  the  remainderman  by  contract,  so 
as  to  compel  him  either  to  pay  for  improvements  which  enhance  the 
value  of  the  property,  or  to  permit  them  to  be  removed  when  it  can 
be  done  without  injury  to  the  inheritance.  For  this  position,  they 
rely  on  Whiting  v.  Brastoto,  4  Pickering,  310,  in  which  it  is  ruled, 
that  a  tenant  for  life,  years,  or  at  will,  may  at  the  determination  of 
his  estate  remove  such  erections,  etc.,  as  were  placed  on  the  prem- 
ises by  himself,  the  removal  of  which  will  not  injure  the  freehold, 
or  put  the  premises  in  a  worse  plight  than  when  he  entered.  In 
Whiting  v.  Brastoiv,  the  tenant  removed  a  padlock  used  for  securing 
a  bin-house,  and  movable  boards  fitted  and  used  for  putting  up 
corn  in  bins.  That  was  a  case  between  landlord  and  tenant,  and 
not  between  tenant  for  life  and  the  remainderman;  the  rule  being 
that,  as  between  the  latter,  in  questions  respecting  the  right  to  what 
are  ordinarily  called  fixtures,  as  between  tenant  for  life  or  in  tail 
and  the  remainderman  or  reversioner,  the  law  is  considered  more 
favorable  than  between  landlord  and  tenant.  It  is  construed  most 
strictly  between  the  executor  and  heir,  in  favor  of  the  latter;  more 
liberally  between  tenant  for  life,  or  in  tail,  and  the  remainderman, 
or  reversioner,  in  favor  of  the  former;  and  with  much  greater 
latitude  between  landlord  and  tenant,  in  favor  of  the  tenant.  A  dis- 
tinction arises,  also,  between  the  cases,  from  the  nature  of  improve- 
ments. In  Whiting  v.  Brastozv,  the  court  treated  the  improvements 
as  personal  chattels;  but  this  cannot  be  said  of  these  erections, 
which  are  of  a  permanent,  substantial  kind,  and  which  surely  would 
not  have  gone  to  the  executors  of  Mrs.  Lloyd,  if  the  buildings  had 
been  erected  by  her.  It  would  have  been  waste  in  the  tenant  to 
have  removed  them;  for  it  is  in  general  true,  that  when  a  lessee 
having  annexed  anything  to  the  freehold,  during  his  term,  after- 
wards takes  it  away,  it  is  waste.  Co.  Lit.  53;  Moore,  177;  4  Co. 
64;  Hob.  234. 

Doty  v.  Gorham,  5  Pickering,  487,  merely  decides  that  a  shop 
placed  on  the  lands  of  the  plaintiff,  with  his  permission,  was  a  chat- 
tel, and  as  such  may  be  sold,  on  an  execution  against  the  owner,  and 
that  the  purchaser  has  a  right  to  enter  on  the  land  and  remove  the 
shop.  This  principle  it  is  not  necessary  to  controvert,  as  the  appli- 
cation of  it  is  not  perceived. 

It  must  be  remarked,  that  the  agreement  does  not  purport  to  bind 
Arndt,  the  owner  of  the  remainder  in  fee,  and  seems  to  have  been 
made  under  the  belief  and  with  the  wish,  that  the  life  interest  would 
last  as  long  as  the  lease,  which  was  but  for  three  years.  But  if  the 
intention  were  to  bind  him,  the  objection  arises,  that  it  is  not  com- 
petent for  them   to  make  an  agreement,  to   affect   the   inheritance. 

LAW  OF  PROP.   IN  LAND  — 22 


338      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

On  the  falling  in  of  the  particular  estate,  the  remainderman  or 
reversioner  is  entitled  to  all  the  improvements,  which  the  law 
denominates  fixtures,  without  regard  to  the  manner  they  are  con- 
structed, the  persons  who  may  have  erected  them,  or  whether  they 
may  contribute  to  enhance  the  value  of  the  property  or  not.  If  the 
tenant  for  life,  or  the  person  with  whom  he  contracts,  wishes  to 
avoid  the  consequences,  the  improvements  must  be  removed  during 
the  continuance  of  the  first  estate;  or  the  assent  of  the  remainder- 
man, or  reversioner,  must  be  obtained.  There  is  nothing  which 
shows  any  assent  to  the  agreement  by  Arndt.  The  deposition  of 
Lloyd  proves  nothing  further  than  that  the  rent  was  made  known  to 
Arndt,  and  that  he  made  no  objection  against  White  being  the  ten- 
ant for  the  remainder  of  the  lease.  But  not  a  word  was  said,  so  far 
as  appears,  about  this  agreement.  It  is  in  general  true,  that  where 
there  is  a  lease  for  years,  and  by  consent  of  both  parties  the  tenant 
continues  in  possession  afterwards,  the  law  implies  a  tacit  renova- 
tion of  the  contract.  But  that  principle  cannot  fairly  be  made  to 
apply  to  this  case;  for  here,  although  the  lease  terminated  at  the 
death  of  Mrs.  Lloyd,  and  the  tenant  continued  in  possession  with 
the  consent  of  Arndt,  yet  that  would  bind  the  parties  to  nothing 
more  than  what  came  within  the  terms  of  the  lease.  It  would  not 
include  the  case  of  a  collateral  agreement,  independent  of  the  lease 
itself.  The  agreement  on  which  this  case  turns,  was  a  collateral 
agreement,  of  which  it  does  not  appear  that  Arndt  was  in  any  man- 
ner apprized,  or  to  which  there  is  not  the  slightest  evidence  he 
assented,  either  directly,  or  by  necessary  implication. 

Judgment  affirmed. 


VI.  Manure  as  incident  to  land. 

i.  Agricultural  Lands. 

a.  As  between  vendor  and  vendee  and  heir  and  executor. 

(i.)  The  General  Rule. 

GOODRICH  v.  JONES. 

2  Hill(N.  Y.),  142.  — 1841. 

\Reported  herein  at  p.  255.] 


VI.   i.j  MANURE   AS   INCIDENT   TO    LAND.  339 

FAY  v.  MUZZEY. 

13  Gray  (Mass.),  53.  —  1859. 

Action  of  contract  on  the  probate  bond  of  Elizabeth  Muzzey,  as 
administratrix  of  Benjamin  Muzzey,  deceased,  brought  by  the 
administratrix  de  bonis  non  of  said  Benjamin.  The  administratrix 
was  to  be  charged  with  two  items  for  the  value  of  certain  manure 
unless  this  ceurt  should  think,  as  matter  of  law,  that  she  should  not 
be  chargeable  therewith.     The  further  facts  appear  in  the  opinion. 

Hoar,  J.  —  1.  The  court  are  of  opinion  that  manure  from  the  barn- 
yard of  the  homestead  of  the  intestate,  standing  in  a  pile  upon  his 
land,  although  "  not  broken  up  nor  rotten,  and  not  in  a  fit  condition 
for  incorporation  with  the  soil,"  is  not  therefore  assets  in  the  hands 
of  his  administratrix,  and  that  she  is  not  chargeable  therewith  as  a 
part  of  his  personal  estate.  Manure,  made  in  the  course  of  hus- 
bandry upon  a  farm,  is  so  attached  to  and  connected  with  the 
realty,  that,  in  the  absence  of  any  express  stipulation  to  the  con- 
trary, it  passes  as  appurtenant  to  it.  This  has  been  so  decided  as 
between  landlord  and  tenant,  in  the  cases  of  Daniels  v.  Pond,  21 
Pick.  367;  Lassell  v.  Reed,  6  Greenl.  222,  and  Middlebrook  v.  Corwin, 
15  Wend.  169.  The  reason  of  the  rule  is,  that  it  is  for  the  benefit 
of  agriculture;  that  manure,  which  is  usually  produced  from  the 
droppings  of  cattle  or  swine  fed  upon  the  products  of  the  farm,  and 
composted  with  earth  or  vegetable  matter  taken  from  the  soil,  and 
the  frequent  application  of  which  to  the  ground  is  so  essential  to  its 
successful  cultivation,  should  be  retained  for  use  upon  the  land. 
Such  is  unquestionably  the  general  usage  and  understanding,  and  a 
different  rule  would  give  rise  to  many  difficult  and  embarrassing 
questions. 

The  same  doctrine  was  applied,  as  between  vendor  and  vendee,  in 
Kittredge  v.  Woods,  3  N.  H.  503,  and  in  Goodrich  v.  Jones,  2  Hill 
(N.  Y.)  142.  The  doctrine  as  to  fixtures  and  incidents  to  the  realty 
is  always  most  strictly  held,  as  between  heir  and  executor,  in  favor 
of  the  heir,  and  against  the  right  to  disannex  from  the  inheritance 
whatever  has  been  affixed  thereto.     Elwes  v.  Matve,  3  East,  51. 

The  circumstance  that  a  thing  is  not  permanently  affixed  to  the 
freehold,  but  is  capable  of  detachment,  and  is  even  temporarily 
detached  from  it,  is  not  conclusive  against  the  right  of  the  owner  of 
the  land.  Thus  keys  of  doors  go  to  the  heir,  and  not  to  the  execu- 
tor. Wentworth  on  Executors,  62;  and  in  Goodrich  v.  Jones,  ubi 
supra,  it  was  held,  that  fencing  materials,  which  have  been  used  as 
a  part  of  the  fence,  accidentally  or  temporarily  detached  from  it, 


3  10      CONSTITUENTS    AN.     INCIDENTS   OF    LAND.      [PT.  II.  CH.  II. 

an)  intent  of  the  owner  to  divest  them  permanently  from 
I  ...:    use,  do  n  I   cease  to  be  a  part  of  the  freehold.     In 

\  i  ELernan,  123,  the  same  pi  to  the  case  of 

and  laid  in  heaps  for  ; 
the  w  ml  t  was  h<    1,  that  1      .  w  ouid  pass  by  .1 

conveya 

rht    manure   fi  l      sta      .  which  is  agreed  to  have 

...   i  state,  and  w  as  in  -.  entory,  must 

it  is  no  si  I  account 

I     say  that  s        as  expen<  real  estate  which  has  - 

ts        There    is    00  wa\   in  whieh    it 

can  -    icreased  th<  amount  received  from 

sal(  of  the  real  estate ;  and  if  this  wen  esta     shed,  an  adminis- 

trat   1    .-.as   no   right   thus   to   expend  th(    pers     ...   property  of  her 

state.     *    *    * 

1  udgment  accordingly 


(a.)  rm  Nvw   i:'Ksv\  Doctrine 

RUCKMAN  ;.  01'  rWA  1'KR. 

b8  N  3  s  Law,  581.  —  i860 

H  unes,  J.  —  ro  an  action  of  assumpsit,  the  plaintiff  in  error 
[Ruckman],  who  was  the  defendant  below,  pleaded  payment  with  a 
notice  oi  set-off,  in  which   he   charged   the   plaintiff  below  with  a 

quantity  of  manure  sold  and  delivered.      To  sustain  this  charge,  he 
in  evidence  a  deed  of  conveyance,  from  the  plaintiff  to  him,  of 
a  farm,  in  the  county  of  Bergen,  containing  no  exception  or  reser- 
vation of  manure  or  of   fixtures.     And   he  further  proved   that  the 
I     .  by  his  e  insent,  remained  in  th<  possession  of  the  \'vcw.  -  ■- 
theexecution  of  the  deed,  and  that,  while  he  continued  in  such 
ss   ss    >n,  the   plaintiff   took   and   carted   away   the   manure,  which 
was  lying  in  and  spread  over  the  barn-yard,  and  not  in  heaps,  at  the 
time  of  the  sale  and  conveyance  of  the  farm. 

The  court  was   requested    to   charge  th<    jury  that  the   manure  - 

the  barn-yard,  and  not  in  heaps  at  the  time  of  the  sale  and 

of  the  farm,  if  n<      es  vendor,  passed  by 

leed  with    and    as  a    part  of  the  farm.      The  court  refused  so  t  ) 

charge,    but    instructed    the    jury,    in    effect,   that    the   title   to   the 

manure  did    not  pass   by  the  (\ecd.  and   that   the   defendant,  as   pur- 

chaser  "f    the  farm,  could  not  claim  as  ^i  right  the  manure  that  had 

.ted   in   the   barn-yard.      On  this  the  error    -   ass  gned,  and 

;  gment  s  ught  to  I  -  s<  d 


VI.   i.]  MANURE   AS   INCIDENT   TO    LAND.  341 

The  question  thus  presented  is,  whether,  by  the  deed  of  convey- 
ance of  a  tract  of  land  without  any  clause  of  reservation,  the  title 
to  the  manure  lying  in  and  around  the  barn-yard,  where  it  had 
accumulated,  passed  to  the  grantee. 

By  an  ordinary  deed  of  conveyance  of  land  nothing  passes  to  the 
grantee  but  the  real  estate  and  its  appurtenances,  and  whatsoever 
is  so  attached  or  affixed  to  it,  that  it  cannot  be  removed  without 
injury  to  the  freehold.  Hence  the  question  arises,  whether  manure 
so  lying  in  a  barn-yard  is  a  part  of  the  real  estate,  or  an  appurtenant 
to  it,  or  so  attached  to  the  freehold  that  it  passes  with  it  by  virtue 
of  the  deed  of  conveyance. 

The  question  is  not  to  be  determined  by  the  rules  of  law  regulat- 
ing fixtures,  for  the  property  in  question  is  in  no  respect  a  fixture, 
an  article  of  a  personal  nature  affixed  to  the  freehold,  and  which 
cannot  be  removed  without  injury  to  it,  nor  is  it  claimed  as  such. 
It  is  claimed  as  a  part  of  the  freehold  itself,  an  appurtenant  to  it, 
and  which,  for  the  sake  of  agriculture  and  good  husbandry,  should 
not  be  removed. 

But,  as  between  the  grantor  and  grantee,  I  can  discover  no  reason, 
nor  can  I  find  any  satisfactory  authority  for  such  claim.  Manure  in 
the  yard  is  as  much  personal  property  as  the  animals  and  the  litter 
from  which  it  is  produced,  as  much  so  as  the  grain  in  the  barn  or  the 
stacks  of  hay  in  the  meadow.  And  it  is  not  material  whether  it  lies 
up  in  heaps  or  scattered  around  the  yard;  whether  as  thrown  from 
the  doors  or  windows  of  the  stable;  or  where  it  accumulated  from 
the  droppings  of  the  cattle.  But  when  it  is  spread  upon  the  land, 
and  appropriated  to  it  for  fertilizing  purposes,  then,  and  not  until 
then,  does  it  become  a  part  of  the  freehold.  Posts  and  rails, 
designed  for  the  farm,  are  personal  property  so  long  as  they 
remain  in  piles  or  otherwise  unappropriated;  but  as  soon  as  they 
are  converted  into  fence  they  become  a  part  of  the  freehold  affixed 
to  it,  so  as  to  lose  the  character  of  personalty.  As  well  may  the 
timber,  stones,  and  other  materials  brought  together  for  the  con- 
struction of  a  building  be  regarded  as  a  part  of  the  farm  before  the 
building  is  erected,  as  the  manure  before  it  is  applied.  Between  the 
vendor  and  the  vendee  the  rule,  as  to  what  is  personal  and  what  real 
estate,  is  the  same  as  between  the  heir  at  law  and  the  executor. 
As  between  the  latter,  it  obtains  with  the  most  rigor  in  favor  of  the 
inheritance  and  against  the  right  to  consider  as  personal  property 
anything  which  has  been  affixed  or  is  appurtenant  to  the  freehold. 
Yet,  as  between  them,  manure  has  ever  been  regarded  as  personal 
property  and  sold  by  the  executor  without  a  question  of  the  right 
to   do   so.     In    1   Williams  on   Executors,  511,  we  find  it  declared 


342      CONSTITUENTS   AND    INCIDENTS    OF   LAND.      [PT.  II.   CH.  II. 

"  that  dung  in  a  heap  is  a  chattel,  and  goes  to  the  executor;  but  if 
it  lies  scattered  on  the  ground,  so  that  it  cannot  well  be  gathered 
up  without  gathering  a  part  of  the  soil  with  it,  then  it  is  parcel  of 
the  freehold."  Toller,  in  his  Law  of  Executors,  page  150,  says: 
"  Manure  in  a  heap,  before  it  is  spread  on  the  land,  is  a  personal 
chattel."  In  Carver  v.  Pierce,  Styles,  66,  cited  in  11  Vin.  Abb. 
175,  Executor  2,  Roll,  J.,  as  early  as  Mich.  Term  of  23  Charles, 
held  that  dung  in  a  heap  is  a  chattel,  but  if  spread  upon  the  land  it 
is  not. 

Such  is  the  rule  of  the  common  law,  and  also  of  the  ecclesiastical 
law,  and  as  we  have  no  statute  on  the  subject,  it  is  also  the  law  of 
New  Jersey,  and  I  can  find  no  satisfactory  reason  in  any  commen- 
tary or  in  the  adjudication  of  other  states  for  changing  the  rule. 

In  2  Kent's  Com.  346,  it  is  laid  down  that  manure  lying  upon  the 
land,  and  fixtures  erected  by  the  vendor  for  the  purpose  of  trade 
and  manufactures,  such  as  potash  kettles,  pass  to  the  vendee  of  the 
land.  But  the  author  is  there  treating  of  fixtures,  and  refers  for 
authority  to  cases  which,  so  far  as  they  relate  to  manure,  cannot  be 
sustained  on  the  principles  of  the  common  law,  as  between  vendor 
and  vendee,  or  landlord  and  tenant,  in  the  absence  of  some  cove- 
nant or  local  custom  to  control  them.  Miller  v.  Plumb,  6  Cowen, 
665,  relates  strictly  to  the  question  of  fixtures,  the  right  to  potash 
kettles,  troughs,  and  leaches.  In  Kirwan  v.  Latour,  1  Har.  & 
Johns.  289,  the  right  to  a  still-house  apparatus  and  utensils  for 
carrying  on  a  distillery  was  a  question.  Powell  v.  Monson,  3 
Mason,  459,  relates  to  the  mill-wheel  and  gearing  of  a  factory,  and 
Farrar  v.  Stackpole,  6  Greenl.  R.  154,  to  the  fixtures  of  a  saw-mill. 
Unless  the  discriminating  commentator  can  be  supposed  to  have 
adopted  the  fallacy  of  the  reasoning  in  Kittredge  v.  Woods,  3  New 
Hamp.  R.  503,  it  is  fair  to  presume  that,  in  speaking  of  manure 
lying  upon  the  ground,  he  had  reference  to  such  as  had  been  spread 
upon  the  land,  and  appropriated  to  it. 

In  Kittredge  v.  Woods,  3  New  Hamp.  R.  503,  decided  in  1829,  Ch. 
Just.  Richardson,  in  a  very  elaborate  opinion,  held  that  all  manure, 
whether  it  be  in  heaps  about  barns  or  made  in  other  places  on  the 
land,  goes  with  the  land  to  the  vendee.  As  this  is  a  leading  case, 
which  has  been  followed  and  relied  upon  by  the  courts  in  nearly  all 
the  cases  in  New  England  and  New  York,  it  may  be  proper  to 
examine  the  principles  on  which  it  is  based. 

After  discussing  the  law  of  fixtures  between  parties  in  their  vari- 
ous relations,  the  Chief  Justice  refers  to  authorities  to  show  that 
things  which,  although  not  affixed  to  the  freehold,  go  to  the  heir  as 
appurtenances  to  the   inheritance,  namely,  doves  able   to  fly,  which 


VI.   i.]  MANURE   AS    INCIDENT   TO    LAND.  343 

with  the  dove-cote  go  to  the  heir,  while  young  doves  in  the  dove- 
house  not  able  to  fly  belong  to  the  executor.  He  refers,  also,  to 
the  keys  of  the  doors  and  to  chests  containing  the  title  deeds,  which 
go  to  the  heir,  and  then  adds:  "  We  are  inclined  to  think  that  the 
principle  of  these  decisions  will  give  to  the  heir  the  manure  which  may 
be  carried  out  and  left  upon  the  field  in  heap  for  dressing,  or  which 
may  be  left  lying  in  heaps  about  the  barns  upon  the  land." 

But  I  am  at  a  loss  to  perceive  how  the  rules  for  the  disposition  of 
such  articles  can  change  or  modify  the  equally  well-settled  rules  as 
to  manure.  Doves  are  animals / 'era  natura,  except  when  in  the  care 
or  custody  of  an  owner,  as  when  confined  in  a  dove-cote  or  pigeon- 
house,  or  when  in  the  nest  not  able  to  fly.  Bouvier's  L.  Diet.  448, 
title  Dove.  When  not  in  such  care  they  are  not,  in  contemplation 
of  law,  the  property  of  any  individual,  and  are  not  the  subject  of 
larceny.  2  East  PI.  Crown,  607,  §  41.  But  young  doves,  not  able 
to  fly  or  leave  the  cote,  may  be  the  subject  of  ownership,  and  as  per- 
sonal property,  go  to  the  executors,  while  those  able  to  fly  are  not 
strictly  property,  personal  or  real,  and  go  where  they  please,  and 
alight  where  they  list.  If  there  be  any  ownership  in  such  birds,  it 
is  in  the  nature  of  heirlooms,  and  as  such,  like  hares  in  a  warren,  or 
fish  in  a  pond,  go  to  the  heir  with  the  inheritance. 

So  title  deeds  are  not  personal  property,  and  the  stealing  of  them 
is  no  larceny,  but  only  a  trespass,  because  they  concern  the  land, 
or,  in  technical  language,  savor  of  realty,  and  are  considered  a  part 
of  it  by  the  law;  and  so  they  descend  to  the  heir,  together  with  the 
land  which  they  concern.  4  Bl.  Com.  234.  They  are  necessary  to 
secure  the  enjoyment  of  the  land,  and  are  annexed  to,  and  are  called 
heirlooms,  and  descend  with  the  inheritance  to  the  heir.  2  Bl. 
Com.  28;  14  Viner's  Abr.  291.  And  the  boxes  or  chests  in  which 
they  are  contained,  and  which  are  necessary  to  their  preservation, 
go  with  the  deeds,  as  do  the  tapes  and  strings  that  tie  them.  On 
the  same  principle,  the  keys  of  the  doors  of  the  house  are  a  part  of 
the  inheritance,  and  go  with  it.  These  articles  are  all  regarded  as 
belonging  to  the  freehold,  although  in  fact  severed  from  it.  Hav- 
ing been  appropriated  to  the  land,  like  boards  which  have  fallen 
from  the  fence  or  building,  or  like  a  mill-stone  which  has  been  lifted 
from  its  bed  for  the  purpose  of  being  picked,  they  continue  to  be  a 
part  of  it.  Hence,  I  have  ventured  to  characterize  the  reasoning 
and  deductions  of  the  case  as  fallacious. 

Daniels  v.  Pond,  21  Pick.  367,  decided  in  1838,  has  also  been  con- 
sidered as  a  leading  case  in  relation  to  manure.  In  the  opinion  of 
the  court,  expressed  by  Chief  Justice  Shaw,  it  was  declared  that 
manure  made  on  a  farm  occupied  by  a  tenant  at  will  or  for  years  in 


344      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CH.  II. 

the  ordinary  course  of  husbandry,  consisting  of  collections  from  the 
stable  and  barn-yard,  or  of  compost  formed  by  an  admixture  of 
these  with  the  soil  or  other  substances,  is  by  usage,  practice,  and 
general  understanding,  so  attached  to  and  connected  with  the  realty 
that,  in  the  absence  of  any  express  stipulation  on  the  subject,  the 
outgoing  tenant  has  no  right  to  remove  it,  or  to  sell  it  to  be 
removed.  This  opinion  is  expressly  based  on  usage,  practice,  and 
general  understanding,  and  is  consequently  of  no  value  in  a  case 
where  there  is  no  proof  of  any  such  usage  or  practice. 

In  Middlebrook  v.  Coriuin,  15  Wend.  R.  170,  determined  in  1836, 
Nelson,  J.,  cites  the  English  authorities  above  referred  to  as  fixing 
the  rule  on  this  subject,  and  adds,  perhaps  this  rule  is  to  be  taken 
with  some  qualifications. 

The  practice  and  usage  of  the  neighboring  country,  and  even  in 
relation  to  a  particular  farm,  should  enter  into  the  decision  of  the 
question;  because  the  parties  are  presumed  to  enter  into  the  engage- 
ment with  reference  to  it,  wheie  there  is  no  express  stipulation. 
And  he  concludes  a  tenant  has  no  right  to  remove  the  manure. 
While  this  case  recognizes  the  rule  of  the  common  law,  it  seeks  to 
modify  it  by  the  consideration  of  local  usage;  but  it  can  have  no 
weight  against  that  rule  in  this  case,  where  there  is  no  evidence  of 
any  such  usage. 

The  cases  thus  referred  to  and  considered  are  leading  cases,  and 
have  had  their  influence  on  those  which  followed  them,  and  it  is 
sufficient  for  the  present  purpose  to  say,  that  although  they  are 
entitled  to  great  respect  and  to  much  weight  where  they  are  appli- 
cable, yet  that  the  reasoning  and  the  principle  of  none  of  them  are 
such  as  to  induce  us  to  make  innovation  upon  the  rule  of  the  eccle- 
siastical and  common  law  long  recognized  and  maintained  by  us. 

The  conclusion  is  that  manure  lying  in  and  around  the  yard,  not 
spread  upon  the  land,  is  personal  property,  and  does  not  by  virtue 
of  the  deed  of  conveyance  pass  with  the  freehold;  that  there  is  no 
error  in  the  charge  of  the  court  below,  and  that  the  judgment  must 
be  affirmed  with  costs 


b.    As  between  landlord  and  tenant. 

MIDDLEBR00K  v.  CORWIN. 

rs  Wend.  (N.  Y.),  169.-1836. 

By  the  Court,  Nelson;  J.  — It  is  laid  down  in  several  books,  that 
t&anure  in  heaps,  before  it  is  spread  upon  the  land,  is  a  personal 
chattel.     11  Viner,  175,  tit.  Executors;   Toll.  L.ofEx.  150;  Matthew's 


VI.   i.]  MANURE   AS   INCIDENT   TO    LAND.  345 

Ex.  27.  It  further  appears  that  it  is  common  to  insert  a  covenant 
in  the  lease  of  a  farm,  to  leave  the  manure  of  the  last  year  upon  it. 
All  this  would  seem  to  imply  that  the  article  belongs  to  the  tenant, 
and  that  without  a  covenant  he  might  remove  it.  If  a  farm  is 
leased  for  agricultural  purposes,  good  husbandry,  which  without  any 
stipulation  therefor  is  implied  by  law,  would,  unduubtedly,  require 
it  to  be  left;  if  rented  for  other  purposes,  this  conclusion  might  not 
follow.  In  Watson  v.  Welch,  tried  in  1785,  in  summing  up  to  the 
jury,  the  judge  said  that  it  was  matter  of  law  to  determine  what  was 
using  the  land  in  a  husbandlike  manner,  and  expressed  the  opinion 
that  under  a  covenant  so  to  work  a  farm,  the  tenant  ought  to  use 
on  the  land  all  the  manure  made  there,  except  that  when  his  time 
was  out,  he  might  carry  away  such  corn  and  straw  as  he  had  not 
used  there,  and  was  not  obliged  to  bring  back  the  manure  arising 
therefrom.  Woodf.  Landl.  &  T.  255;  1  Esp.  N.  P.  pt.  2,  p.  131. 
Perhaps  this  rule  should  be  taken  with  some  qualifications.  The 
practice  and  usage  of  the  neighboring  country,  and  even  in  relation 
to  a  particular  farm,  should  enter  into  the  decision  of  the  question. 
4  East,  154;  Dough.  201;  Holt,  N.  P.  R.  197;  2  Barn.  &  Aid.  15; 
Aid.  746.  This  is  reasonable,  because  the  parties  are  presumed  to 
enter  into  the  engagement  with  reference  to  it,  where  there  is 
no  express  stipulation.  What  may  be  good  husbandry  in  respect 
to  one  particular  soil,  climate,  etc.,  may  not  be  so  in  respect  to 
another.  Independently,  however,  of  the  usage  and  custom  of  the 
place,  the  rule  of  Mr.  J.  Buller,  I  apprehend,  may  be  the  correct 
one.  In  the  recent  case  of  Brown  v.  Crump,  r  Marsh.  567,  Ch.  J. 
Gibbs  said,  that  he  had  often  heard  him  (Mr.  J.  Buller)  lay  down 
the  doctrine,  "  that  every  tenant,  where  no  particular  agreement 
existed  dispensing  with  that  engagement,  is  bound  to  cultivate  his 
farm  in  a  husbandlike  manner,  and  to  consume  the  produce  on  it. 
This  is  an  engagement  that  arises  out  of  the  letting,  and  which  the 
tenant  cannot  dispense  with,  unless  by  special  agreement."  With- 
out carrying  the  doctrine  to  this  extent,  we  may,  I  think,  safely 
say,  upon  authority,  that  where  a  farm  is  let  for  agricultural  pur- 
poses, no  stipulation  or  custom  in  the  case,  the  manure  does  not 
belong  to  the  tenant,  but  to  the  farm;  and  the  tenant  has  no  more 
right  to  dispose  of  it  to  others,  or  remove  it  himself  from  the  prem- 
ises, than  he  has  to  dispose  of  or  remove  a  fixture. 

Case  is  the  appropriate  action  for  the  injury  complained  of. 
1  Chitty'  s.  PI.  142.  The  tenant  having  no  authority  himself  to 
remove  the  manure,  could  give  none  to  the  defendant.  The  judgment 
of  the  C.  P.  must  be  reversed,  and  that  of  the  justice  affirmed. 

Judgment  accordingly. 


346      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.  CM.  II. 

c.   Separate  sale  of  manure. 

STRONG  v.  DOYLE. 

no  Massachusetts,  92.  —  1872   • 

Colt,  J.  —  It  was  said  in  Fay  v.  Muzzey,  13  Gray,  53,  that  manure 
made  in  the  course  of  husbandry  upon  a  farm  is  so  attached  to 
and  connected  with  the  realty  that,  in  the  absence  of  any  express 
stipulation  to  the  contrary,  it  passes  as  appurtenant  to  it.  This  rule 
is  applied  in  whatever  situation  or  condition  the  material  is  before 
it  is  finally  expended  upon  the  soil.  It  is  till  then  an  incident  of  the 
real  estate  of  such  peculiar  character  that,  while  it  remains  only  con- 
structively annexed,  it  will  be  personal  property  if  the  parties  inter- 
ested agree  so  to  treat  it.  Such  an  agreement,  though  it  be  unwrit- 
ten, does  not  come  within  the  statute  of  frauds,  and  is  not  to  be 
rejected,  although  contemporaneous  with  the  conveyance  of  the  real 
estate.  An  oral  contract  for  the  sale  of  it  is  valid.  In  the  case  of 
fixtures  which  are  not  incorporated  with,  but  merely  annexed  to  the 
freehold,  the  rule  is  well  settled  that  the  statute  does  not  apply. 
Browne  on  St.  of  Frauds,  §  234;  Hallen  v.  Bunder,  1  C,  M.  &  R. 
266;  Bostwick  v.  Leach,   3  Day,  476. 

In  the  case  at  bar,  evidence  was  offered  that  the  defendant,  while 
negotiating  for  the  farm  and  before  its  conveyance  to  him,  made  a 
separate  and  distinct  agreement  for  the  purchase  of  the  manure,  to 
be  his  only  in  case  he  was  the  highest  bidder  at  public  auction;  that 
the  plaintiff  advertised  the  sale  as  agreed,  and  the  defendant  at  the 
sale  for  the  first  time  claimed  that  the  manure  belonged  to  him 
under  the  plaintiff's  deed,  and  that  it  was  afterwards  spread  upon 
the  land  by  him.  The  deed  was  in  the  usual  form,  conveying  the 
land  only,  and  reserving  only  to  the  plaintiff  the  right  of  occupying 
until  the  first  of  April  following. 

In  the  opinion  of  the  court,  this  evidence  supports  the  plaintiff's 
title  to  the  property  in  dispute.  It  proves  an  independent  prelimi- 
nary agreement,  by  which  it  was  severed  from  its  relations  to  the 
realty  before  the  deed  was  made.  It  serves  to  ascertain  the  subject- 
matter  upon  which  the  deed  was  intended  to  operate.  1  Greenl. 
Ev.,  §  286;  Ropps  v.  Barker,  4  Pick.  239.  Such  an  agreement, 
mule  upon  good  consideration,  with  the  owner  of  land  before  it  is 
conveyed,  is,  as  a  mode  of  severance,  as  effectual  as  a  sale  by  the 
r  to  a  stranger,  or  an  agreement  between  landlord  and  tenant 
by  which  the  manure  becomes  personal  property.  Noble  v.  Sylvester, 
42  Vt.   [46;   Ford  v.  Cobb,  20  N.  Y.  344. 

This  case  differs  from  Noble  v.  Bosicortli,  19   Pick.  314,  cited  by 


VI.  2.]  MANURE    AS   INCIDENT   TO    LAND.  347 

the  defendant.  There  the  owner  of  land  erected  a  dye-house  upon 
it,  in  which  dye-kettles,  firmly  secured  in  brick,  were  set  up.  And 
it  was  held  that  a  verbal  reservation  of  the  kettles,  before  or  at  the 
time  of  the  delivery  of  the  deed  of  the  land,  was  inadmissible  to 
control  the  ordinary  effect  and  operation  of  the  deed.  The  prop- 
erty in  dispute  had  been  actually  annexed  to  the  building,  and 
intentionally  incorporated  .with  the  real  estate  by  the  owner  for  the 
purpose  of  permanent  improvement.  While  in  that  condition  before 
severance  it  was  subject  to  the  rules  which  govern  the  title  and 
transfer  of  real  estate,  and  passed  by  the  deed.  Here  no  act  of 
severance  was  necessary  to  detach  the  manure  from  the  land,  and 
the  agreement  of  the  parties  was  sufficient. 

Exceptions  sustained. 


2.  Lands  Not  Agricultural  or  Not  to  be  Used  for  Agri- 
cultural Purposes. 

FAY  v.  MUZZEY. 

13  Gray  (Mass.),  53.  —  1859. 

[Reported  herein  at  p.  339.] 


NEEDHAM  v.  ALLISON. 
24  New  Hampshire,  355.  —  1852. 

Bell,  J.,  delivered  the  opinion  of  the  court. — It  is  settled  here 
that  manure,  as  between  the  buyer  and  seller,  passes  with  the  land, 
whether  it  is  drawn  out  upon  the  land  for  the  purpose  of  use  there, 
or  is  lying  in  heaps,  or  otherwise,  about  the  barns  or  yards.  Kitt- 
redge  v.  Woods,  3  N.  H.  Rep.  503.  The  same  is  regarded  as  the  law 
elsewhere  in  this  country.  Stone  v.  Proctor,  2  D.  Chip.  115;  Wether- 
bee  v.  Ellison,  19  Vt.  (4  Wash.)  379;  Lassellv.  Reed,  6  Greenl.  222; 
Middleborough  v.  Corwin,  15  Wend.  169;  Goodrich  v.  Jones,  2  Hill,  142; 
Daniels  x.  Pond,  21  Pick.  371. 

That  principle,  however,  does  not  reach  this  case,  since  there  is 
here  no  question  except  in  relation  to  the  manure  made  upon  the 
premises  subsequently  to  the  sale,  and  while  the  defendant  may  be 
regarded  as  a  tenant  of  the  purchaser. 

In  England,  in  the  case  of  manure  made  by  a  tenant  of  merely 
agricultural  property,  in  the  ordinary  course  of  husbandry,  Chan- 
cellor Kent  seems  to  be  of  the  opinion  that  the  custom  is  for  the 


343      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.  CH.  II 

outgoing  tenant  to  sell  or  take  away  the  manure.  2  Com.  347, 
n.,  a.  He  cites  Roberts  v.  Barker,  1  C.  &  M.  809,  and  the  cases  of 
Higgon  v.  Mortimer,  6  C.  &  P.  616;  Hut  ion  v.  Warren,  1  M.  &  W. 
466;  2  Gale,  71;  Beatty  v.  Gibbons,  16  East,  116,  support  that  view, 
while  the  cases. of  Broiun  v.  Crump,  1  Marsh.  567;  Putney  v.  Sheldon, 
5  Ves.  147,  260,  n.,  and  Onslow  v.  ,  16  Ves.  173,  seem  to  coun- 
tenance a  different  rule,  where  there  is  no  special  contractor  custom 
of  the  country. 

In  this  country,  in  some  of  the  States,  it  has  been  held  that  the 
manure  made  by  the  tenant  during  his  term,  is  his  property,  which 
he  has  the  right  to  remove  or  sell,  and  which  may  be  attached  and 
holden  as  his  property  for  the  payment  of  his  debts.  Staples  v. 
Emery,    7  Greenl.  201 ;  Southtvick  v.  Ellison,  2  Iredell,  326. 

In  others,  it  is  held  that  in  the  absence  of  special  agreement,  or  a 
special  custom,  the  rules  of  good  husbandry  require  that  the  manure 
made  upon  a  farm,  in  the  ordinary  course,  should  be  expended  upon 
it;  that  such  manure  is  an  incident  of  the  freehold,  and  belongs  to 
the  landlord,  subject  to  the  right  of  the  tenant  to  use  it  in  the  culti- 
vation of  the  land;  and  that  the  tenant  has  no  right  to  remove  or 
dispose  of  it,  or  to  apply  it  to  any  other  use,  either  during  or  after 
the  expiration  of  his  tenancy.  Wetherbee  v.  Ellison,  19  Vt. 
(4  Wash.)  397;  Middlebrook  v.  Coriuin,  15  Wend.  169;  Goodrich  v. 
Jones,  2  Hill,  142;  Lassell  v.  Reed,  6  Greenl.  222;  Daniel  v.  Pond, 
21  Pick.  371;  to  which  add  Kent's  Opinion,  2  Com.  347,  n.,  a. 

But  it  is  urged  upon  us,  that  whatever  may  be  the  rule  as  to  agri- 
cultural property,  it  is  here  immaterial  because  the  tenancy  was  not 
for  agricultural  purposes,  in  the  ordinary  course  of  husbandry.  By 
his  deed,  the  defendant  reserved  the  possession  of  the  property  from 
its  date  in  September,  till  the  first  of  April  following.  He  owned 
the  hay  and  stock  from  which  this  manure  was  made.  He  was 
under  no  obligation  to  keep  either  upon  the  place,  except  for  his 
own  convenience,  and  he  was  bound  by  no  duties  to  the  purchaser 
resulting  from  contract,  either  express  or  implied,  except  that  of 
giving  up  the  possession  on  the  first  of  April. 

It  was  substantially,  so  far  as  this  question  is  concerned,  a  reser- 
vation of  the  buildings  merely,  since  the  season  of  farming  opera- 
tions was  chiefly  passed,  and  the  rights  of  the  parties  were  rather 
like  those  "f  the  lessor  and  lessee  of  livery  stables,  or  the  like,  than 
those  of  farming  tenants.  There  would  seem  to  be  no  doubt  that 
as  to  this  kind  of  buildings  there  would  be  no  pretense  that  the 
or  would  have.:  any  claim  to  the  manure,  except  such  as  might 
result  from  express  contract.  Daniels  v .  Pond,  21  Pick.  367;  Lassell 
v.  Reedy  6  Greenl.  222. 


VI.  2.]  MANURE    AS    INCIDENT    TO    LAND.  349 

This  view  strikes  us  as  just  and  reasonable,  and  most  consistent 
with  the  reasonable  understanding  and  expectations  of  the  parties. 
No  one  can  doubt  that  this  must  have  been  the  idea  of  the  defend- 
ant, or  he  would  have  made  his  reservation  clear  in  this  respect. 
And  it  is  not  easy  to  imagine  that  the  plaintiff  should  leave  it  a 
subject  for  a  doubt,  if  he  supposed  he  was  to  have  this  manure,  and 
it  was  so  understood.  Upon  this  ground  we  are  of  opinion  there 
must  be 

Judgment  for  the  defendant. 


HASLEM  v.  LOCKWOOD. 

37  Connecticut,  500.  —  1871. 

Park,  J. — We  think  the  manure  scattered  upon  the  ground, 
under  the  circumstances  of  this  case,  was  personal  property.  The 
cases  referred  to  by  the  defendant  to  show  that  it  was  real  estate 
are  not  in  point.  The  principle  of  those  cases  is,  that  manure  made 
in  the  usual  course  of  husbandry  upon  a  farm  is  so  attached  to  and 
connected  with  the  realty  that,  in  the  absence  of  any  express  stipu- 
lation to  the  contrary,  it  becomes  appurtenant  to  it.  The  principle 
was  established  for  .the  benefit  of  agriculture.  It  found  its  origin 
in  the  fact  that  it  is  essential  to  the  successful  cultivation  of  a  farm 
that  the  manure,  produced  from  the  droppings  of  cattle  and  swine 
fed  upon  the  products  of  the  farm,  and  composted  with  earth  and 
vegetable  matter  taken  from  the  land,  should  be  used  to  supply  the 
drain  made  upon  the  soil  in  the  production  of  crops,  which  otherwise 
would  become  impoverished  and  barren;  and  in  the  fact  that 
manure  so  produced  is  generally  regarded  by  farmers  in  this  country 
as  a  part  of  the  realty  and  has  been  so  treated  by  landlords  and  ten- 
ants from  time  immemorial.  Daniels  x.  Pond,  21  Pick.  367;  Lewis 
v.  Lyman,  22  Pick.  437;  Kittredge  v.  Woods,  3  N.  Hamp.  503; 
Lassell  v.  Reed,  6  Greenl.  222;  Parsons  v.  Camp,  11  Conn.  525;  Fay 
v.  Muzzy,  13  Gray,  53;  Goodrich  v.  Jones,  2  Hill,  142;  1  Washb.  on 
Real  Prop.  5,  6. 

But  this  principle  does  not  apply  to  the  droppings  of  animals 
driven  by  travelers  upon  the  highway.  The  highway  is  not  used, 
and  cannot  be  used,  for  the  purpose  of  agriculture.  The  manure  is 
of  no  benefit  whatsoever  to  it,  but.  on  the  contrary,  is  a  detriment; 
and  in  cities  and  large  villages  it  becomes  a  nuisance,  and  is 
removed  by  public  officers  at  public  expense.  The  finding  in  this 
case  is,  "  that  the  removal  of  the  manure  and  scrapings  was  calcu- 
lated to  improve  the  appearance  and  health  of  the  borough."     It  is, 


350      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CH.  II. 

therefore,  evident  that  the  cases  relied  upon  by  the  defendant  have 
no  application  to  the  case. 

But  it  is  said  that  if  the  manure  was  personal  property,  it  was  in 
the  possession  of  the  owner  of  the  fee,  and  the  scraping  it  into 
heaps  by  the  plaintiff  did  not  change  the  possession,  but  it  continued 
as  before,  and  that  therefore  the  plaintiff  cannot  recover,  for  he 
neither  had  the  possession  nor  the  right  to  the  immediate  possession. 

The  manure  originally  belonged  to  the  travelers  whose  animals 
dropped  it,  but  it  being  worthless  to  them  was  immediately  aban- 
doned, and  whether  it  then  became  the  property  of  the  borough  of 
Stamford  which  owned  the  fee  of  the  land  on  which  the  manure  lay, 
it  is  unnecessary  to  determine;  for,  if  it  did,  the  case  finds  that  the 
removal  of  the  filth  would  be  an  improvement  to  the  borough,  and 
no  objection  was  made  by  any  one  to  the  use  that  the  plaintiff 
attempted  to  make  of  it.  Considering  the  character  of  such  accu- 
mulations upon  highways  in  cities  and  villages,  and  the  light  in 
which  they  are  everywhere  regarded  in  closely  settled  communities, 
we  cannot  believe  that  the  borough  in  this  instance  would  have  had 
any  objection  to  the  act  of  the  plaintiff  in  removing  a  nuisance  that 
affected  the  public  health  and  the  appearance  of  the  streets.  At  all 
events,  we  think  the  facts  of  the  case  show  a  sufficient  right  in  the 
plaintiff  to  the  immediate  possession  of  the  property  as  against  a 
mere  wrongdoer. 

The  defendant  appears  before  the  court  in  no  enviable  light.  He 
does  not  pretend  that  he  had  aright  to  the  manure,  even  when  scat- 
tered upon  the  highway,  superior  to  that  of  the  plaintiff;  but  after 
the  plaintiff  had  changed  its  original  condition  and  greatly  enhanced 
its  value  by  his  labor,  he  seized  and  appropriated  to  his  own  use  the 
fruits  of  the  plaintiff's  Outlay,  and  now  seeks  immunity  from  respon- 
sibility on  the  ground  that  the  plaintiff  was  a  wrongdoer  as  well  as 
himself.  The  conduct  of  the  defendant  is  in  keeping  with  his 
claim,  and  neither  commends  itself  to  the  favorable  consideration  of 
the  court.  The  plaintiff  had  the  peaceable  and  quiet  possession  of 
the  property;  and  we  deem  this  sufficient  until  the  borough  of  Stam- 
ford shall  make  complaint. 

It  is  further  claimed  that  if  the  plaintiff  had  a  right  to  the  prop- 
erty by  virtue  of  occupancy,  he  lost  the  right  when  he  ceased  to 
retain  the  actual  possession  of  the  manure  after  scraping  it  into 
heaps. 

We  do  not  question  the  general  doctrine,  that  where  the  right  by 
OCCUpanc  y  exists,  it  exists  no  longer  than  the  party  retains  the 
actual  possession  of  the  property,  or  till  he  appropriates  it  to  his 
own  use  by  removing  it  to  some  other  place.     If  he  leaves  the  prop- 


VII.]  SEA   WEED,    WRECK,    ETC.  351 

erty  at  the  place  where  it  was  discovered,  and  does  nothing  what- 
soever to  enhance  its  value  or  change  its  nature,  his  right  by  occu- 
pancy is  unquestionably  gone.  But  the  question  is,  if  a  party  finds 
property  comparatively  worthless,  as  the  plaintiff  found  the  prop- 
erty in  question,  owing  to  its  scattered  condition  upon  the  highway, 
and  greatly  increases  its  value  by  his  labor  and  expense,  does  he 
lose  his  right  if  he  leaves  it  a  reasonable  time  to  procure  the  means 
to  take  it  away,  when  such  means  are  necessary  for  its  removal. 

Suppose  a  teamster  with  a  load  of  grain,  while  traveling  the  high- 
way, discovers  a  rent  in  one  of  his  bags,  and  finds  that  his  grain  is 
scattered  upon  the  road  for  the  distance  of  a  mile.  He  considers 
the  labor  of  collecting  his  corn  of  more  value  than  the  property 
itself,  and  he  therefore  abandons  it,  and  pursues  his  way.  A  after- 
wards finds  the  grain  in  this  condition  and  gathers  it  kernel  by  ker- 
nel into  heaps  by  the  side  of  the  road,  and  leaves  it  a  reasonable 
time  to  procure  the  means  necessary  for  its  removal.  While  he  is 
gone  for  his  bag,  B  discovers  the  grain  thus  conveniently  collected 
in  heaps  and  appropriates  it  to  his  own  use.  Has  A  any  remedy? 
If  he  has  not,  the  law  in  this  instance  is  open  to  just  reproach.  We 
think  under  such  circumstances  A  would  have  a  reasonable  time  to 
remove  the  property,  and  during  such  reasonable  time  his  right  to  it 
would  be  protected.  If  this  is  so,  then  the  principle  applies  to  the 
case  under  consideration. 

A  reasonable  time  for  the  removal  of  this  manure  had  not  elapsed 
when  the  defendant  seized  and  converted  it  to  his  own  use.  The 
statute  regulating  the  rights  of  parties  in  the  gathering  of  sea-weed, 
gives  the  party  who  heaps  it  upon  a  public  beach  twenty-four  hours 
in  which  to  remove  it,  and  that  length  of  time  for  the  removal  of 
the  property  we  think  would  not  be  unreasonable  in  most  cases  like 
the  present  one. 

We  therefore  advise  the  Court  of  Common  Pleas  to  grant  a  new 
trial. 


VII.  Sea  weed,  wreck,  stranded  property.    Mislaid  goods. 

MATHER  v.  CHAPMAN. 

40  Connecticut,  382.  —  1873. 

Seymour,  C.  J.  — The  first  count  of  the  plaintiff's  declaration  is 
in  trespass  for  the  taking  and  converting  to  his  own  use  by  the 
defendant  of  large  quantities  of  sea-weed  alleged  to  be  the  proper 
goods  and  estate  of  the  plaintiffs.  This  sea-weed  was  cast  upon  the 
shore  adjoining  the  defendant's  land,  and  was  there,  below  high- 


352      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CH.  II. 

water  mark,  taken  by  the  defendant  and  converted  to  his  own  use. 
The  Court  of  Common  Pleas,  against  the  request  of  the  plaintiffs, 
instructed  the  jury,  in  substance,  that  sea-weed  cast  and  left  upon 
the  shore,  (that  is,  between  ordinary  high  and  low-water  mark), 
prima  facie  belongs  to  the  public  and  may  lawfully  be  appropriated 
by  the  first  occupant. 

To  this  charge  the  plaintiffs  object,  and  the  principal  question  in 
the  case  arises  upon  this  objection. 

A  different  question  arises  under  the  second  count,  which  will  be 
considered  in  its  proper  place. 

It  is  conceded  that  by  the  settled  law  of  Connecticut  the  title  of  a 
riparian  proprietor  terminates  at  ordinary  high-water  mark.  It  is 
also  conceded  that  though  his  title  in  fee  thus  terminates,  yet  he 
has  certain  privileges  in  the  adjoining  waters. 

Among  the  most  important  of  these  privileges  are  (i)  That  of 
access  to  the  deep  sea.  (2)  The  right  to  extend  his  lands  into  the 
water  by  means  of  wharves,  subject  to  the  qualification  that  he 
thereby  does  no  injury  to  the  free  navigation  of  the  water  by  the 
public.  (3)  The  right  by  accretion  to  whatever  lands  by  natural  or 
artificial  means  are  reclaimed  from  the  sea,  subject,  however,  to 
certain  qualifications  not  necessary  here  to  be  mentioned. 

The  plaintiffs  claim  that  among  the  privileges  of  the  riparian  pro- 
prietor is  also  that  of  the  exclusive  right  to  the  sea-weed  which  is 
cast  upon  the  shore  and  left  there  by  the  receding  tide. 

In  respect  to  the  weed  cast  by  extraordinary  floods  upon  the  land 
of  the  proprietor  and  there  left  above  ordinary  high-water  mark,  the 
law  of  this  state  is  settled,  in  conformity  with  what  we  understand 
to  be  the  common  law  of  England.  The  owner  of  the  soil  has  it 
ratione  soli.  No  other  person  can  then  take  it  without  a  trespass 
upon  the  owner's  land,  and  as  owner  of  the  land  he  is  deemed  to  be 
constructively  the  first  occupant. 

But  below  high-water  mark  the  soil  does  not  belong  to  the  owner 
of  the  upland.  The  sea-weed  in  dispute  was  not  taken  from  the 
plaintiff's  land,  and  their  title,  if  they  have  a  title,  is  not  ratione  soli. 
No  trespass  on  the  plaintiff's  land  was  committed  by  the  defendant 
in  taking  the  weed,  for  the  taking  of  which  recovery  is  sought  in 
this  court. 

Upon  what  ground  then  can  the  plaintiffs  sustain  the  title  which 
they  claim  to  the  weed?  While  it  was  floating  on  the  tide  it  was 
publici juris .  Why,  when  it  is  left  on  the  shore  by  the  receding  tide, 
should  it   become  their  property? 

In  Massai  husetts  and  Maine,  by  virtue  of  the  Colonial  Ordinance 
df  [641,  the  individual  title  of  proprietors  adjoining  navigable  water 


VII.]  SEA   WEED,    WRECK,    ETC.  353 

extends  to  low-water  mark.      [Citing  and  discussing  Barker  v.  Bates, 
reported  at  p.  355,  below. ,] 

The  cases  therefore  in  Massachusetts  and  Maine  which  decide 
that  sea-weed  left  on  the  shore  belongs  to  the  riparian  proprietor 
have  no  application  here.  In  New  Hampshire  the  Massachusetts 
ordinance  is  adopted  as  law. 

In  New  York  the  common-law  rule  is  adopted,  as  with  us,  in  rela- 
tion to  the  boundary  line  between  the  public  and  the  riparian  pro- 
prietor, and  it  is  claimed  that,  in  Emans  v.  Tumbull,  2  Johns.  R. 
313,  the  question  before  us  is  decided  in  conformity  with  the 
plaintiffs'  claim.  The  judgment  in  that  case  is  pronounced  by  a 
judge  of  profound  learning,  whose  opinion  upon  the  point  now  under 
discussion,  if  really  given,  would  be  entitled  to  great  weight;  but 
we  are  inclined  to  think  that  the  sea-weed  in  that  case  was  cast 
upon  the  land  of  the  plaintiff.  The  main  argument  at  the  bar  and 
on  the  bench  relates  to  the  title  to  the  locus  in  quo.  Chief  Justice 
Kent  says:  "  If  the  marine  increase  be  by  small  and  imperceptible 
degrees,  it  goes  to  the  owner  of  the  land.  The  sea-weed  must  be 
supposed  to  have  accumulated  gradually." 

In  the  case  we  are  called  on  to  decide,  the  sea-weed  could  not  be 
regarded  as  a  marine  increase  of  the  plaintiff's  land,  for  it  had  not 
reached  their  land  and  was  not  attached  to  it  nor  connected  with  it. 
To  be  a  marine  increase  it  must  form  part  and  parcel  of  the  land 
itself.  Being  between  high  and  low-water  mark,  at  each  returning  tide 
it  would  be  afloat,  and  even  in  Massachusetts  sea-weed  when  afloat 
is  publici  juris,  although  floating  over  soil  which  is  private  property. 

The  sea-weed  in  this  suit  is  not  treated  as  part  of  the  real  estate 
which  by  small  and  imperceptible  degrees  had  become  part  of  the 
plaintiff's  land.  It  is  treated  as  personal  property,  and  the  defendant 
is  sued  for  taking  it  as  such  and  converting  it  to  his  Ovvn  use.  In 
the  case  of  Emans  v.  Tumbull  the  plaintiff's  title  was  held  good 
upon  a  liberal  construction  of  the  jus  alluvionis  which  implies  that 
the  weed  had  then  become  part  and  parcel  of  the  plaintiff's  land 
and  must  therefore  have  been  above  or  upon  ordinary  high-water 
mark.  Title  to  personal  property  jure  alluvionis  would  be  a  novelty 
in  the  law.  2  Black.  Com.  262.  Title  by  accretion  is  substantially 
the  same  as  by  alluvion.  Both  are  modes  of  acquiring  title  to  real 
property. 

Title,  however,  to  personal  property  may  be  acquired  by  what  in 
law  is  called  accession,  but  to  acquire  title  by  accession  the  acces- 
sory thing  must  be  united  to  the  principal,  so  as  to  constitute  part 
and  parcel  of  it.  "  Accessio  "  is  defined  by  Bouvier  as  "  a  manner 
of  acquiring  the  property  in  a  thing  which  becomes  united  with  that 

LAW  OF  PROP.  IN  LAND  —  23 


354      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

which  a  person  already  possesses."  The  plaintiffs,  therefore,  seem 
to  us  to  have  no  title  by  alluvion,  or  by  accretion,  or  by  accession, 
certainly  none  ratione  soli,  and  they  cannot  be  regarded  as  first  occu- 
pants by  construction  merely  because  of  the  propinquity  of  their 
land  to  the  property  in  dispute. 

The  question  under  discussion  does  not  seem  to  be  fully  settled  in 
England.  The  soil  of  the  seashore  is  there,  as  with  us,  prima  facie 
in  the  public,  but  it  may  become  private  property,  and  frequently 
is  so,  where  the  adjoining  lands  are  part  of  the  manor.  The  author- 
ity of  Bracton  is  clearly  in  favor,  (ist)  of  the  common  right  of  all 
to  the  shores  of  the  sea  as  part  of  the  sea  itself.  (2d)  In  Liber  2, 
speaking  of  the  right  of  first  occupancy,  he  says:  "  Item,  locum 
habet  eadem  species  occupationis,  in  Us  quae  communia  sunt,  sicut  in  mare 
et  littore  maris,  in  lappillis  et  ge minis  et  ceteris  in  littore  maris  invenlis." 
Sea-weed  must  be  included  within  the  et  ceteris  of  Bracton  in  this 
passage,  and  upon  his  authority  belongs  to  the  first  occupant. 

The  opinion  of  Lord  Hale  in  favor  of  the  common  right  to  take 
sea-weed  on  the  shore  is  shown  by  the  following  passage  in  chapter 
6  of  Hale,  de  Jure  Maris.  After  speaking  of  three  kinds  of  shore 
he  says:  '  This  kind  of  shore,  to  wit,  that  which  is  covered  by  the 
ordinary  flux  of  the  ocean,  may  belong  to  a  subject,  and  may  be 
parcel  of  a  manor,  and  the  evidence  to  prove  it  parcel  of  a  manor 
are  commonly  these,  constant  and  usual  fetching  of  gravel  and  sea- 
weed and  sea-sand,  between  high  and  low-water  mark,  and  licensing 
others  so  to  do." 

In  the  case,  however,  of  Bagott  v.  Orr,  2  Bos.  &  Pul.  472,  the 
court  expressed  doubts  upon  the  right  of  the  public  to  come  upon 
the  shore  and  take  shells  which  had  been  thrown  up  and  left  there 
by  the  tide. 

In  the  case  of  Blundcll  v.  Catterall  there  occurs  a  very  learned  and 
interesting  discussion  upon  the  right  of  the  public  between  high  and 
low-water  mark,  but  the  precise  question  now  under  our  considera- 
tion is  not  made  the  subject  of  comment. 

The  case  of  Church  v.  Meeker,  34  Conn.  R.  421,  is  relied  upon  by 
both  parties.  We  think  the  opinion  of  Judge  Butler  in  that  case  must 
be  construed  as  applicable  solely  to  sea-weed  found  as  it  there  was 
above  high-water  mark. 

In  the  case  of  Peck  v.  Lockwood,  5  Day,  22,  the  plaintiff  owned  a 
portion  <>f  the  shore  below  ordinary  high-water  mark,  and  it  was  held 
that  he  could  not  maintain  trespass  against  the  defendant,  who 
entered  the  premises  when  the  tide  was  out  and  dug  for  shellfish 
and  carried  the  fish  away.  That  is  a  strong  case  in  favor  of  the 
<  ommon  right  "f  fishing. 


VII.]  SEA   WEED,    WRECK,    ETC.  355 

But  the  right  of  taking  sea-weed  would  seem  to  stand  on  the  same 
ground  as  the  right  of  taking  fish.  We  see  no  reason  for  making  a 
distinction  between  the  vegetable  and  animal  products  of  the  ocean. 
Neither  in  the  state  of  nature  is  the  property  of  any  one ;  the  title  to 
both  depends  upon  the  first  occupancy.  It  is  agreed  that  while 
afloat  both  are  alike  common;  why,  when  the  tide  recedes  and 
leaves  shellfish  and  sea-weed  on  the  shore,  should  the  sea-weed 
belong  to  the  riparian  proprietor  when  confessedly  the  shellfish 
remains  common  property? 

We  think  the  charge  of  the  judge  in  regard  to  the  first  count  was 
correct. 


BARKER  v.  BATES. 

13  Pickering  (Mass.),  255.  —  1832. 

Trespass  for  taking  and  carrying  away  a  stick  of  timber  from 
plaintiff's  land. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  The  sole  and 
single  question  in  the  present  case  is,  which  of  these  parties  has  the 
preferable  claim,  by  mere  naked  possession,  without  other  title,  to  a 
stick  of  timber,  driven  ashore  under  such  circumstances  as  lead  to 
a  belief  that  it  was  thrown  overboard  or  washed  out  of  some  vessel 
in  distress,  and  never  reclaimed  by  the  owner.  It  does  not  involve 
any  question  of  the  right  of  the  original  owner  to  regain  his  prop- 
erty, in  the  timber,  with  or  without  salvage,  or  the  right  of  the  sov- 
ereign to  claim  title  to  property  as  wreck,  or  of  the  power  and  juris- 
diction of  the  governments,  either  of  the  commonwealth  or  of  the 
United  States,  to  pass  such  laws  and  adopt  such  regulations  on  the 
subject  of  wreck,  as  justice  and  public  policy  may  require.1     *     *     * 

Considering  it  as  thus  established,  that  the  place  upon  which  this 
timber  was  thrown  up  and  had  lodged,  was  the  soil  and  freehold  of 
the  plaintiff,  that  the  defendants  cannot  justify  their  entry,  for  the 
purpose  of  taking  away  or  marking  the  timber,  we  are  of  opinion 
that  such  entry  was  a  trespass,  and  that  as  between  the  plaintiff  and 

1  The  place  where  the  stick  of  timber  was  found  by  defendant  was  "  on  the 
sea-shore,  between  high  and  low-water  mark  "  in  front  of  plaintiff's  beach.  It 
was  contended,  on  the  one  hand,  that  by  the  common-law  rule  plaintiff's  land 
extended  only  to  high-water  mark.  On  the  other  it  was  insisted  that  an  early 
Massachusetts  ordinance  applied,  in  accordance  with  which  the  proprietor  of 
lands  adjoining  salt  water  owns  to  the  low-water  mark  "  where  the  sea  does 
not  ebb  and  flow  above  a  hundred  rods."  The  court  held  the  ordinance 
applicable.  —  Ed. 


356      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CII.  II. 

the  defendants,  neither  of  whom  had  or  claimed  any  title  except  by- 
mere  possession,  the  plaintiff  had,  in  virtue  of  his  title  to  the  soil, 
the  preferable  right  of  possession,  and  therefore  that  the  plaintiff 
has  a  right  to  recover  the  agreed  value  of  the  timber,  in  his  claim 
of  damages. 


SHELDON  v.  SHERMAN. 
42  New  York,  484.  —  1870. 

Hunt,  J. — There  is  a  large  class  of  cases,  in  which  injury  is 
suffered  by  a  party,  where  the  law  gives  no  redress.  If  a  tree 
growing  upon  the  land  of  one  is  blown  down  upon  the  premises  of 
another,  and  in  its  fall  injures  his  shrubbery,  or  his  house,  or  his 
person,  he  has  no  redress  against  him  upon  whose  land  the  tree 
grew.  If  one  builds  a  dam  of  such  strength  that  it  will  give  protec- 
tion against  all  ordinary  floods  the  occurrence  of  an  extraordinary 
flood  by  which  it  is  carried  away,  and  its  remains  are  lodged  upon 
the  premises  of  the  owner  below,  or  by  means  whereof  the  dam  below 
is  carried  away,  or  the  mill  building  is  destroyed,  gives  no  claim 
against  the  builder  of  the  dam.  If  the  house  of  A.  accidentally  take 
fire,  and  the  flames  spread  and  consume  the  house  of  B.,  the  latter 
has  no  claim  of  indemnity  upon  A.  If  the  horses  of  A.,  being  prop- 
erly equipped  and  driven,  become  unmanageable,  without  fault  or 
negligence,  run  away  and  injure  the  property  or  the  person  of  his 
neighbor,  the  latter  must  suffer  the  loss.  In  these  cases  the  injury 
arises  from  a  fortuitous  occurrence  beyond  the  control  of  man.  It 
is  termed  "  the  act  of  God."  The  party  through  whom  it  occurs 
is  not  responsible  for  it.  The  party  suffering  must  submit  to  it,  as 
a  providential  dispensation.  Ryan  v.  N.  Cen.  R.  R.  Co.,  35  N.  Y. 
210;  Anthony  v.  Harvey,  8  Bing.  191;  Storey  on  Bail.,  §  83a,  and 
the  learned  note.     Auth.  post. 

In  all  these  cases,  there  is  no  liability  on  the  part  of  him  through 
whose  innocent  instrumentality  the  injury  occurs,  and  his  promise 
to  respond  to  the  damages  would  be  without  consideration  and  void. 

In  the  instance  before  us,  the  logs  were  carried  down  the  river 
and  deposited  upon  the  plaintiff's  land,  without  fault  on  the  part  of 
the  defendants  or  of  those  building  or  having  charge  of  the  boom. 
The  defendants  were  not  responsible  for  an  injury  arising  from  their 
being  thus  deposited,  and  a  promise  to  make  it  good  would  be  with- 
out consideration,  and  not  obligatory.  Neither  were  the  defend- 
ants unconditionally  liable  for  the  injury  arising  from  allowing  the 
logs   to   remain  where   deposited.      If  they  chose   to  abandon   their 


VII].  SEA   WEED,    WRECK,   ETC.  357 

property  thus  cast  on  shore,  they  had  the  right  so  to  do,  and  no 
one  could  call  them  to  account.  They  were  not  compelled,  how- 
ever, to  abandon  it,  but  had  the  right  to  reclaim  it;  like  one  whose 
fruit  falls  or  is  blown  upon  his  neighbor's  ground,  the  ownership  is 
not  thereby  lost,  but  the  owner  may  lawfully  enter  upon  the  prem- 
ises to  recapture  his  property.  When  he  does  so  reclaim  or  recap- 
ture, his  liability  to  make  good  the  damage  done  by  his  property 
arises.  He  then  becomes  responsible.  Before  he  can  reclaim  or 
recapture  the  property  thus  astray,  justice  and  equity  demand  that 
he  should  make  good  the  injury  caused  by  its  deposit  and  its  con- 
tinuance. 

The  rule  is  sensibly  expressed  by  Domat,  in  the  article  following, 
viz. :  "  1st.  He  who  has  found  a  thing  that  is  lost  is  bound  to  pre- 
serve it,  and  to  take  care  of  it  in  order  to  restore  it  to  its  owner. 
.  .  .  And  when  he  does  restore  it,  he  cannot  detain  any  part  of 
it  nor  demand  anything  for  having  found  it.  But  he  will  recover 
only  what  expense  he  has  been  at,  as  shall  be  explained  in  the  fol- 
lowing article.  2d.  The  person  to  whom  one  restores  the  thing 
which  he  had  lost,  is  obliged  on  his  part  to  repay  the  money  that 
has  been  laid  out  either  in  keeping  the  thing  or  in  delivering  it  to 
him,  as  if  it  was  some  strayed  beast  which  it  was  necessary  to  feed, 
or  that  the  carriage  of  the  thing  from  one  place  to  another  had 
obliged  the  person  in  whose  custody  it  was  to  be  at  some  charges; 
or  if  any  money  has  been  laid  out  in  advertisements  or  in  having  the 
thing  cried,  in  order  to  give  notice  to  the  owner.  .  .  .  3d.  The 
proprietor  of  a  ground  on  which  is  thrown  the  rubbish  of  a  building 
that  has  fallen  down,  or  that  which  a  flood  has  carried  away  from 
another's  ground,  is  obliged  to  suffer  him  who  has  had  the  loss  to 
take  away  what  remains,  and  to  allow  him  such  free  access  to  his 
grounds  as  is  necessary  for  that  end.  But  upon  the  conditions  that 
are  explained  in  the  following  article.  4th.  In  the  cases  of  the 
foregoing  article,  he  who  desires  to  have  back  the  materials  of  his 
building  that  is  fallen  down,  or  that  which  a  flood  hath  carried  awav 
from  his  land  and  thrown  upon  another  man's  ground,  is  obliged, 
on  his  part,  not  only  to  indemnify  the  proprietor  of  said  ground,  as 
to  what  damage  shall  happen  to  be  done  by  taking  away  the  things 
which  have  been  thrown  upon  it,  but  he  is  moreover  bound  to  repair 
all  the  damage  which  has  been  already  done  to  the  ground  by  the 
things  since  they  were  cast  upon  it.  But  if  he  choses  rather  not  to 
take  away  anything,  he  will  owe  nothing;  for,  if  he  abandons  to  the 
proprietor  of  that  ground  all  that  has  been  cast  upon  it,  he  is  not 
bound  to  make  good  a  damage  that  has  happened  by  the  bare  effect 
of  that  accident,  and  it  is  enough  that  he  loses  what  the  accident 


358      CONSTITUENTS   AND    INCIDENTS    OF   LAND.       [PT.  II.   CH.  II. 

has  carried  away  from  him.  5th.  If  he,  whose  materials  or  other 
things  have  been  thrown  by  these  accidents  on  the  estate  of  another 
person,  be  desirous  to  take  them  away,  he  will  be  obliged,  besides 
the  making  reparation  for  the  damage  sustained  by  the  owner  of  the 
ground,  to  take  away  as  well  the  unprofitable  stuff  that  can  be  of  no 
manner  of  use  as  that  which  is  useful  and  which  he  is  desirous  to 
take  away,  and  to  clear  entirely  the  surface  of  the  ground  on  which 
the  things  have  been  thrown."  Domat,  vol.  1,  pp.  334,  335,  part 
1,  b.  2,  tit.  9,  §  2,  arts.  1,  2,  3,  4,  5.      Lond.  ed.  of  1722. 

The  logs  in  question  were  reclaimed  by  the  authority  of  the 
defendants  and  removed  from  the  premises  of  the  plaintiff.  No 
question  is  made  as  to  Pond's  authority  to  remove  the  property, 
whatever  may  be  said  of  his  authority  to  promise  payment.  When 
the  defendants  thus  removed  their  property,  they  became  at  once 
responsible  for  the  payment  of  the  damages.  If  they  made  no 
express  promise  to  pay  them,  the  law  raises  the  promise  and  will 
sustain  an  action  based  upon  it.  "  Where  there  is  a  legal  right  to 
demand  a  sum  of  money  and  there  is  no  other  remedy,  the  law  will 
imply  a  promise  of  payment."  Poor  v.  Guilford,  6  Seld.  276; 
Newton  v.  Coon,   3  Denio,  134,  5  Greenleaf  R.,  519. 

The  doctrines  of  Domat  are  sustained  by  Amory  v.  Flyn,  10  ■ 
Johns.  R.  102,  and  Rider  v.  Anderson,  4  Dana,  193.  See  also  Story 
on  Bail.  121,  and  note  621^.  Nicholson  v.  Chapman,  2  H.  Black.  R. 
254,  is  not  analogous,  and  furnishes  no  authority  to  the  contrary. 
Nor  is  the  case  of  Beinstead 'v.  Bach,  2  W.  Bl.  1117,  or  of  2  Strange, 
278;  1  M.  &  S.  290,  20  J.  R.  28;  10  Id.  249;  4  Wend.,  652,  to  the 
point.  This  is  not  the  case  of  a  gratuitous  or  voluntary  service,  for 
which  no  compensation  can  be  demanded.  The  use  of  the  plain- 
tiff's land  was  compulsory.  He  never  consented  to  the  use.  He 
had  not  the  power  to  resist.  Whether  the  logs  remained  upon  the 
premises  an  unreasonable  length  of  time  was  a  question  of  fact  to 
be  decided  by  the  jury,  or  by  the  judge  acting  in  their  place,  if  the 
question  became  important.  3  B.  &  C.  213;  4  B.  &  Aid.  366,  387; 
2  B.  &  B.  692.  The  finding  in  favor  of  the  plaintiff  determines  this 
question  in  his  favor,  upon  the  well-settled  principle  that  every  fact 
not  expressly  found  shall  be  deemed  to  have  been  found,  and  held 
in  such  manner  as  to  uphold  the  judgment  36  N.  Y.  340;  32  Id. 
464;   28  Id.  532;  22  Id.  425,  323;  21  Id.  551. 

The  recovery  was  upon  general  principles  of  law,  without  refer- 
en<  e  to  the  statute.  It  is  not  necessary  to  invoke  it  in  his  behalf, 
nor  are  his  rights  disturbed  by  its  provisions.  The  judgment 
should  be  affirmed  with  costs. 

Judgment  affirmed. 


VII.]  SEA    WEED,    WRECK,    ETC.  359 

McAVOY  v.  MEDINA. 

ii  Allen  (Mass.),  549.  —  1866. 

Dewey,  J.  —  It  seems  to  be  the  settled  law  that  the  finder  of  lost 
property  has  a  valid  claim  to  the  same  against  all  the  world  except 
the  true  owner,  and  generally  that  the  place  in  which  it  is  found 
creates  no  exception  to  this  rule.  2  Parsons  on  Con.  97 ;  Bridges  v. 
Ifawkesworth,  7  Eng.  Law  and  Eq.  R.  424. 

But  this  property  is  not,  under  the  circumstances,  to  be  treated 
as  lost  property  in  that  sense  in  which  a  finder  has  a  valid  claim  to 
hold  the  same  until  called  for  by  the  true  owner.  This  property 
was  voluntarily  placed  upon  a  table  in  the  defendant's  shop  by  a 
customer  of  his  who  accidentally  left  the  same  there  and  has  never 
called  for  it.  The  plaintiff  also  came  there  as  a  customer,  and  first 
saw  the  same  and  took  it  up  from  the  table.  The  plaintiff  did  not 
by  this  acquire  the  right  to  take  the  property  from  the  shop,  but  it 
was  rather  the  duty  of  the  defendant,  when  the  fact  became  thus 
known  to  him,  to  use  reasonable  care  for  the  safe  keeping  of  the 
same  until  the  owner  should  call  for  it.  In  the  case  of  Bridges  v. 
Hawkesivorth  the  property,  although  found  in  a  shop,  was  found  on 
the  floor  of  the  same,  and  had  not  been  placed  there  voluntarily  by 
the  owner,  and  the  court  held  that  the  finder  was  entitled  to  the 
possession  of  the  same,  except  as  to  the  owner.  But  the  present 
case  more  resembles  that  of  Latvrence  v.  The  State,  1  Humph. 
(Tenn.)  228,  and  is  indeed  very  similar  in  its  facts.  The  court 
there  take  a  distinction  between  the  case  of  property  thus  placed  by 
the  owner  and  neglected  to  be  removed,  and  property  lost.  It  was 
there  held  that  "  to  place  a  pocket-book  upon  a  table  and  to  forget 
to  take  it  away  is  not  to  lose  it,  in  the  sense  in  which  the  authorities 
referred  to  speak  of  lost  property." 

We  accept  this  as  the  better  rule,  and  especially  as  one  better 
adapted  to  secure  the  rights  of  the  true  owner. 

In  view  of  the  facts  of  this  case,  the  plaintiff  acquired  no  original 
right  to  the  property,  and  the  defendant's  subsequent  acts  in 
receiving  and  holding  the  property  in  the  manner  he  did  does  not 
create  any. 

Exceptions  overruled. 


360      CONSTITUENTS    AND    INCIDENTS   OF   LAND.       [PT.  II.   CII.  II. 

VIII.  Property  in  fish  and  game  ratione  soli. 

Breese,  J.,  in  BECKMAN  v.  KREAMER. 

43  Illinois.  447.  —  1867. 

By  the  common  law,  a  right  to  take  fish  belongs  so  essentially  to 
the  right  of  soil  in  streams  or  bodies  of  water,  where  the  tide  does 
not  ebb  and  flow,  that  i'f  the  riparian  proprietor  owns  upon  both 
sides  of  such  stream,  no  one  but  himself  may  come  upon  the  limits 
of  his  land  and  take  fish  there;  and  the  same  rule  applies  so  far  as 
his  land  extends,  to  wit,  to  the  thread  of  the  stream,  where  he  owns 
upon  one  side  only.  Within  these  limits,  by  the  common  law,  his 
right  of  fishery  is  sole  and  exclusive,  unless  restricted  by  some  local 
law  or  well-established  usage  of  the  state  where  the  premises  may 
be  situated.  Washburn  on  the  Law  of  Easements  and  Servitudes, 
411,  referring  to  Hargraves'  Law  Tracts,  5;  Woolrych  on  Waters, 
87;  Chalder  v.  Dickinson,  1  Conn.  382;  Waters  v.  Lilley,  4  Pick.  199; 
Hooker  v.  Cummins,  20  Johns.   90;  McFarlin  v.  Essex  Co.,  10  Cush. 

3°4- 

This  right  to  take  fish  within  the  limits  of  one's  land  bounding 
upon  and  including  a  stream  not  navigable,  is  so  far  a  subject  of 
distinct  property  or  ownership,  that  it  may  be  granted,  and  will  pass 
by  a  general  grant  of  the  land  itself,  unless  expressly  reserved;  or 
it  may  be  granted  as  a  separate  and  distinct  property  from  the  free- 
hold of  the  land,  or  the  land  may  be  granted,  while  the  grantor 
reserves  the  fishery  to  himself. 

In  this  case  the  record  shows,  that  the  plaintiffs  below  showed 
either  a  legal  or  equitable  title  to  the  lands  on  which  the  lake  was 
situate,  and  actual  possession  and  cultivation  of  the  adjacent  lands 
described  in  the  title  papers  they  exhibited. 

It  appears  the  lake  is  a  small  sheet  of  water  about  seven  miles 
from  the  Kankakee  river,  and  has  an  outlet  to  that  river.  It 
abounds  in  fish  of  a  choice  kind.  The  defendants  went  on  it  with 
small  boats  they  had  brought  with  them,  equipped  with  a  seine, 
which  they  dragged  in  the  lake,  against  the  will  and  protest  of  the 
owners  of  the  land. 

This  entering  upon  the  land  and  fishery,  which  was  exclusive  in 
the  plaintiffs,  was  a  trespass  upon  their  premises,  for  which  the 
ai  ti'.n  of  trespass  lay,  independently  of  the  question  of  ownership 
in  the  fish.  The  plaintiffs  had,  therefore,  a  clear  right  to  recover 
for  the  trespass.      *     *     * 


VIII.]  PROPERTY    IN   FISH    AND    GAME.  361 

STERLING  v.  JACKSON. 
69  Michigan,  488.  —  1888. 

Champlin,  J.  — This  is  an  action  for  trespass  upon  land  covered 
with  water,  situated  on  fractional  section  11  north  of  private  claim, 
township  7  south,  range  9  east. 

The  declaration  alleges  that  defendant  broke  and  entered  plain- 
tiff's close,  and  with  his  boat,  oars,  and  paddle,  in  rowing  and  punt- 
ing, broke  down  and  destroyed  the  wild  rice  and  grass  there 
growing,  and  with  his  gun  shot  at,  wounded,  and  killed  and  fright- 
ened away  the  wild  ducks  and  other  game  there  resting  and  feeding, 
and  other  injuries,  etc. 

The  defendant  pleaded  the  general  issue,  and  gave  notice  that  he 
would  show  that  the  premises  upon  which  the  injuries  were  supposed 
to  have  been  committed  were  a  common  highway,  and  free  to 
defendant,  and  by  virtue  thereof,  and  in  use  thereof,  he  did  all  and 
singular  the  acts  complained  of,  as  he  lawfully  might.     *     *     * 

There  was  a  large  amount  of  testimony  introduced  to  show  that 
this  bay,  as  well  as  Sandy  creek,  was  navigable  water,  and  in  the 
disposition  made  of  the  case  in  the  court  below  the  fact  was  con- 
ceded that  it  was  navigable,  and  used. as  such,  and  I  shall  consider 
that  fact  as  established. 

It  is  also  a  conceded  fact  that  defendant  was  in  a  boat  in  the 
navigable  waters  of  the  bay,  and  by  the  aid  of  some  rushes  that 
grew  up  through  the  water,  and  a  structure  called  "a  hide,"  and 
several  artificial  ducks  as  decoys,  was  engaged  in  shooting  wild 
ducks  upon  the  premises  covered  by  plaintiff's  patent;  that  he  was 
requested  to  desist,  and  leave  the  premises,  by  plaintiff,  through  his 
agent,  but  refused  so  to  do,  claiming  the  right  to  be  where  he  was, 
and  to  shoot  ducks  and  game,  because  he  was  in  the  navigable 
waters  of  Lake  Erie. 

A  point  is  made  by  counsel  for  defendant  that,  at  the  time  the 
state  issued  its  patent  for  this  land  in  1883,  the  shore  had  washed 
away,  and  the  bay  existed  as  a  part  of  the  waters  of  Lake  Erie,  and 
the  mere  grant  of  the  land  could  convey  no  greater  rights,  as  to 
fishing  and  shooting,  to  the  grantee  than  the  grantor  had. 

It  seems  to  me  that  plaintiff  is  unaffected  by  the  changed  condi 
tion  of  the  shore.  In  my  opinion,  the  grant  was  effective  to  pass 
the  title  to  the  submerged  land.  The  patent  from  the  state  passed 
such  title  as  it  had;  and  if,  prior  to  its  date,  a  portion  of  the  land 
had  become  submerged  by  the  slow  and  imperceptible  encroach- 
ments of  the  waters  of  the  lake,  the  state,  unlike  a  private  person, 
still  would  be  the  owner,  and   could   grant  the  bed  of  the  lake  to 


362      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.   CM.  II. 

whom  it  chose,  so  long  as  such  grant  did  not  interfere  with  private 
vested  rights.     Smith  v.  Levinus,  8  N.  Y.  472.     *     *     * 

It  may  be  remarked,  however,  that  Congress  had  not  the  remotest 
intention  of  granting  these  lands  for  game  .preserves,  to  be  bought 
up  and  controlled  by  individuals  or  clubs.  While  I  have  no  doubt 
that  plaintiff  may,  for  the  purpose  of  reclaiming  this  land,  construct 
levees  or  embankment,  and  thus  shut  out  the  waters  of  Lake  Erie, 
and  the  public  as  well,  yet,  while  he  permits  it  to  remain  as  a  part 
of  the  navigable  water  of  Lake  Erie,  there  is  an  implied  license  to 
the  public,  under  which  the  public  have  the  right  to  navigate  the 
same,  and  to  exercise  all  such  rights  as  are  incident  to  navigation, 
and  it  is  also  subject  to  such  rights  as  the  public  have  in  the  navi- 
gable waters  of  the  state. 

The  plaintiff  claims  the  exclusive  right  of  hunting  within  the  ter- 
ritory covered  by  his  patent  from  the  state.  He  founds  this  right 
upon  his  proprietary  interests  in  the  soil  under  the  water.  He  does 
not  deny,  so  long  as  the  premises  remain  in  their  present  condition, 
that  the  public  have  a  right  of  navigation  over  his  land,  but  he 
claims  such  right  is  a  mere  easement,  and  extends  simply  to  a  right 
of  passage  over  his  lands  in  such  vessels  as  are  capable  of  navigat- 
ing the  water  over  the  same.  He  insists  upon  the  exclusive  right 
to  hunt,  and  to  capture  all  wild  game  while  on  his  own  premises,  and 
that  his  right  of  capture  is  as  much  a  right  of  property  as  the  right 
to  make  any  other  use  of  his  own  premises.  He  cites,  in  support  of 
these  propositions,  the  following  authorities:  Moore  v.  Sanborne,  2 
Mich.  519;  Booming  Co.  v.  Speedily,  31  Id.  336,  342;  Lorman  v.  Ben- 
son, 8  Id.  18;  Rice  v.  Ruddiman,  10  Id.  125;  Booming  Co.  v.  Jarvis, 
30  Id.  319;  Attorney  General  v.  Booming  Co.,  34  Id.  474;  Ewing  v. 
Colquhoun,  2  App.  Cas.  839;  Walker  v.  Board,  etc.,  16  Ohio,  544; 
Braxon  v.  Bress/er,  64  111.  4S8;  June  v.  Purcell,  36  Ohio  St.  396; 
Ross  v.  Faust,  54  Ind.  471;  Berry  v.  Snyder,  3  Bush,  266,  285;  Over- 
man v.  May,  35  Iowa,  89;  Ice  Co.  v.  Shortall,  101  111.  46;  McFarlin 
v.  Essex  Co.,  10  Cush.  309;  Adams  v.  Pease,  2  Conn.  484;  Cooley, 
Torts,  329;  Waters  v.  Lilley,  4  Pick.  145,  Goff  v.  Kilts,  15  Wend. 
550;  Blades  v.  Higgs,  12  C.  B.  (N.  S.)  501,  13  Id.  866;  Ferguson  v. 
Miller^  r  Cow.  243;    Gillett  v.  Mason,  7  Johns.  16;  Gould,  Waters,  §§ 

93^,  158,  i59- 

The  defendant's  counsel  contend  that,  the  bay  being  navigable, 
and  free  to  the  public  for  passage,  the  defendant,  as  one  of  the  pub- 
lic, had  a  right  to  go  upon  the  waters,  and  shoot  as  he  did;  that  the 
entry  upon  the  bay  in  his  boat  was  no  trespass;  that,  having  the 
right,  as  one  of  the  public,  to  pass  over  these  waters,  and  to  be 
where   lie  was,  he  had   the   right  to  fish  in  them,  to  shoot  from  his 


VIII.]  PROPERTY    IN    FISH    AND    GAME.  363 

boat  wild  ducks  flying  over  them  from  the  open  lake,  and  to  anchor 
his  decoys  to  attract  such  ducks;  that  the  ownership  of  the  soil  is  a 
qualified  ownership,  subject  to  the  public  and  common  right  of 
passage,  fishing,  and  shooting  wild  birds.  In  support  of  this,  he 
cites  the  following  authorities:  Pearce  v.  Scotcher,  9  Q.  B.  Div.  162; 
Weston  v.  Sampson,  8  Cush.  347;  Martin  v.  Waddell,  16  Pet.  367; 
Smith  v.  State,  18  How,  74;  Collins  v.  Benbury,  3  Ired.  277;  Browne 
x.  Kennedy,  5  Har.  &  J.  195;  State  v.  Falls  Co.,  49  N.  H.  240;  Car- 
son v.  Blager,  2  Bin.  475;   Sloan  v.  Biemiller,  34  Ohio  St.  492. 

We  have  not  been  cited  to  any  adjudicated  case  where  this  ques- 
tion has  arisen.  Both  parties  have  presented  it  on  the  analogies  of 
the  right  to  fish  in  public  navigable  waters;  and  counsel  for  both 
parties  insist  that,  if  the  case  is  to  be  governed  by  the  rights  of  fish- 
ing, it  should  be  decided  for  their  clients.  Both  appeal  to  the  doc- 
trine of  the  common  law,  and  find  their  vindication  in  its  precepts. 
One  asks  for  the  application  of  the  doctrine  of  the  right  of  fishing 
in  navigable  waters  where  the  tide  ebbs  and  flows;  and  the  other  is 
best  suited  with  the  common  law  as  applied  to  non-tidal  or  fresh 
water  streams. 

While  the  questions  of  fishing  and  hunting  are  in  principle  some- 
what analogous,  yet  they  have  always  in  England  been  treated  as 
separate  subjects  of  legislation  and  regulation.  The  forest  and 
game  laws  of  England  have  always  been  treated  under  a  separate 
code,  distinguished  for  its  tyrannical  inhibition  of  the  common  rights 
of  the  subject,  and  detestable  for  the  cruel  punishments  inflicted 
for  trivial  offenses.  2  Bl.  Com.  411  et  sea.;  Com.  Dig.,  tit.  "  Jus- 
tices of  the  Peace,"  B.  43,  45-49.  The  common  law,  which  recog- 
nized the  right  of  hunting  and  of  property  in  wild  animals  to  be  a 
royal  prerogative,  and  to  vest  in  the  king,  has  no  existence  in  this 
country,  where  no  king  and  no  royal  prerogative  exist.  Here  the 
sovereign  power  is  in  the  people,  and  the  principle,  founded  upon 
reason  and  justice,  obtains,  that  by  the  law  of  nature  every  man,  of 
whatever  rank  or  station,  has  an  equal  right  of  taking,  for  his  own 
use,  all  creatures  fit  for  food  that  are  wild  by  nature,  so  long  as  he 
does  no  injury  to  another's  rights.  Laws  have  been  passed  to  pro- 
tect game  during  certain  seasons,  with  a  view  to  their  preservation, 
but  none  denying  the  right  of  any  person  to  capture  or  kill  game  in 
the  allotted  season.     This  right  is  restricted  only  as  to  place. 

Since  every  person  has  the  right  of  exclusive  dominion  as  to  the 
lawful  use  of  the  soil  owned  by  him,  no  man  can  hunt  or  sport  upon 
another's  land  but  by  consent  of  the  owner.  It  will  be  conceded  that 
the  owner  of  lands  in  this  state  has  the  exclusive  right  of  hunting 
and   sporting  upon  his  own   soil,  whatever   may  be  the  view  enter- 


364      CONSTITUENTS   AND    INCIDENTS    OF    LAND.      [PT.  II.   CM.  II. 

tained  when  the  land  belongs  to  the  United  States  or  to  the  state, 
there  can  be  no  question  when  the  land  passes  to  the  hands  of 
private  owners. 

The  defendant  claims  that  he  had  the  right  to  shoot  the  wild  fowl 
from  his  boat,  because,  as  the  waters  were  navigable  where  he  was, 
he  had  the  right  to  be  there;  that  there  being  no  property  in  wild 
fowl  until  captured,  if  he  committed  no  trespass  in  being  where  he 
was,  no  action  will  lie  against  him  for  being  there  and  shooting  the 
wild  duck.  There  is  a  plausibility  in  the  position,  which,  considered 
in  the  abstract,  is  quite  forcible,  and,  if  applied  to  waters  where 
there  is  no  private  ownership  of  the  soil  thereunder,  would  be  unan- 
swerable. But,  so  far  as  the  plaintiff  is  concerned,  defendant  had 
no  right  to  be  where  he  was  except  for  the  purpose  of  pursuing  the 
implied  license  held  out  to  the  public  of  navigating  the  waters  over 
his  land.  So  long  as  the  license  continued,  he  could  navigate  the 
water  with  his  vessel,  and  do  all  things  incident  to  such  navigation. 
He  could  seek  the  shelter  of  the  bay  in  a  storm,  and  cast  his  anchor 
therein;  but  he  had  no  right  to  construct  a  "  hide,"  nor  to  anchor 
his  decoys  for  the  purpose  of  attracting  ducks  within  reach  of  his 
shotgun.  Such  acts  are  not  incident  to  navigation,  and  in  doing 
them  defendant  was  not  exercising  the  implied  license  to  navigate  the 
waters  of  the  bay,  but  they  were  an  abuse  of  such  license.  *  *  * 
[Several  cases  are  here  reviewed  and  are  then  summed  up  as  follows  :] 

In  each  of  these  cases  the  defendant  "  was  where  he  had  a  right 
to  be  "  at  the  time  he  committed  the  grievance  complained  of, 
nevertheless  this  fact  did  not  justify  him  in  doing  an  act,  the  direct 
consequence  of  which  was  to  injure  the  owner  of  the  land  for  his 
own  benefit.  Is  does  not  follow  that,  because  a  person  is  where  he 
has  a  right  to  be  he  cannot  be  held  liable  in  trespass.  A  person  has 
the  right  to  drive  his  cattle  along  the  public  highway,  but  he  has  no 
right  to  depasture  the  grass  with  his  cattle  in  the  highway  adjoining 
the  land  of  another  person.  Also,  a  person  has  the  right  to  travel 
along  a  public  highway,  but  this  gives  him  no  right  to  dig  a  pit,  or 
remove  the  soil,  or  incumber  it  in  front  of  lands  belonging  to  others. 

In  the  case  under  consideration,  the  defendant' had  the  right  of 
using  the  waters  of  the  bay  for  the  purpose  of  a  public  highway  in 
the  navigation  of  his  boat  over  it;  but  he  had  no  right  to  interfere 
with  the  plaintiff's  use  thereof  for  hunting,  which  belonged  to  him 
as  the  owner  of  the  soil.  The  public  had  a  right  to  use  it  as  a  pub- 
lic highway,  but  every  other  beneficial  use  and  enjoyment  belonged 
to  the  owners  of  the  soil. 

Had  this  action  been  in  case,  with  proper  averments  setting  forth 
plaintiff's  ownership  and   use  for  sporting,  and  defendant's  interfer- 


VIII.]  PROPERTY   IN   FISH   AND   GAME.  365 

ence  and  disturbance  of  plaintiff's  enjoyment,  the  authorities  last 
above  cited  would  have  supported  the  action.  I  am  not  prepared  to 
say,  after  verdict,  that  trespass  will  not  lie  under  the  circumstances 
of  this  case;  more  especially  as  no  question  is  raised  by  defendant's 
counsel  that  it  is  not  the  proper  form  of  action,  and  as  it  appears  to 
have  been  planted  to  test  the  plaintiff's  right  to  the  private  and 
exclusive  use  of  the  land  covered  by  his  patent  for  sporting  pur- 
poses. As  owner  of  the  fee  of  the  soil  under  the  water,  I  think  he 
is  entitled  to  such  exclusive  right,  and  that  the  judgment  should  be 
affirmed. 

I  may  add,  in  conclusion,  that,  aside  from  the  ownership  of  the 
plaintiff  of  the  locus  in  quo,  the  only  important  question  in  this  case 
is  whether  a  man  has  the  exclusive  right  of  fowling  upon  his  own 
land.  If  he  has,  it  can  make  no  difference  with  that  right  whether 
it  be  upland  or  covered  with  water.  As  the  question  of  the  right  to 
fish  in  the  navigable  waters  of  the  great  lakes  at  places  not  affected 
by  private  ownership  does  not  arise  in  this  case,  I  forbear  to  discuss 
it.  My  views  upon  that  subject  were  expressed  in  Lincoln  v.  Davis, 
53  Mich.  375,  19  N.  W.  Rep.  103. 


REXROTH  v.  COON. 

15  Rhode  Island,  35.  —  1885. 


Tillinghast,  J.  —  This  is  an  action  on  the  case  in  trover  for  the 
recovery  of  damages  for  the  wrongful  conversion  of  a  hive  of  bees, 
together  with  the  honey  and  honey-comb  belonging,  as  is  alleged, 
to  the  plaintiff.  The  case  was  originally  brought  and  tried  in  the 
Justice  Court  of  the  town  of  Westerly,  from  whence  it  was  carried 
by  appeal  to  the  Court  of  Common  Pleas.  In  the  Court  of  Common 
Pleas  jury  trial  was  waived,  and  it  was  tried  to  the  court  upon  the 
law  and  the  facts.  It  comes  here  by  bill  of  exceptions,  the  only 
exception  taken  being  to  the  ruling  of  the  court,  that,  upon  the 
facts  which  appeared  in  evidence,  the  plaintiff  was  not  entitled  to 
recover.  Said  facts  are  incorporated  in  the  bill  of  exceptions,  and 
are  a  part  of  the  record  of  the  proceedings.  They  are  substantially 
as  follows,  namely:  In  May,  1881,  the  plaintiff  placed  a  small  pine 
box  called  a  bee-hive,  in  the  crotch  of  a  tree  in  the  woods  on  land 
of  Samuel  Green,  in  the  town  of  Hopkinton.  It  remained  in  this 
position  until  about  the  first  of  September,  1883,  when  the  defend- 
ant went  upon  the  premises  and  took  and  carried  away  the  hive, 
together  with  a  swarm  of  bees  that  was  then   in  it,  also  the  honey 


366      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

and  honey-comb,  and  appropriated  the  same  to  his  own  use.  The 
plaintiff  had  visited  the  hive  about  twice  a  year  while  it  remained  in 
its  position,  for  the  purpose  of  ascertaining  whether  any  bees  were 
in  it  or  had  been.  He  had  found  none.  The  plaintiff  never  had 
any  express  permission  or  license  from  the  owner  of  the  land  to 
place  or  keep  his  hive  in  said  tree. 

The  defendant  never  had  any  express  permission  or  license  from 
the  owner  of  the  land  to  come  upon  it,  and  take  and  carry  away  said 
property.  Said  hive  was  at  some  distance  from  any  house,  and  no 
person  knew  where  said  bees  came  from  into  said  hive,  although  a 
number  of  people  kept  bees  in  said  town.  There  was  evidence  that 
for  several  years  signs  had  been  posted  up  by  said  Green  on  his  prem- 
ises forbidding  all  persons  from  trespassing  thereon,  and  that  one 
of  said  signs  was  within  about  twenty  rods  of  said  hive,  but  the 
plaintiff  testified  that  he  never  saw  any  of  them,  and  that  he  never 
had  any  notice  to  keep  off  said  premises.  The  defendant  split  open 
said  hive  took  out  its  contents,  and  then  nailed  it  together  again  and 
replaced  it  in  said  tree  in  as  good  condition  as  it  was  before  he  took 
it  away.  The  defendant  testified  that  he  knew  the  owner  of  said 
land  had  forbidden  all  persons  from  trespassing  thereon,  but  that 
said  owner  had  told  him  that  he  did  not  put  up  said  notice  to  keep 
off  his  neighbors,  and  had  given  him  permission  to  go  upon  said 
land.  Demand  was  made  upon  defendant  in  due  form  before  the 
commencement  of  suit.  After  the  suit  was  commenced  the  defend- 
ant turned  over  to  said  Green  what  then  remained  in  his  hands  of  said 
bees  and  honey-comb.  The  value  of  the  property  taken  was  vari- 
ously estimated  at  from  $2.50  to  $10.  Upon  said  facts  the  court 
ruled  that  the  plaintiff  was  not  entitled  to  recover,  and  rendered 
judgment  for  the  defendant  for  his  costs,  to  which  ruling  the  plain- 
tiff duly  accepted. 

The  only  question,  therefore,  is  whether  said  ruling  was  correct. 

The  plaintiff  claims  that  he  hived  the  bees,  and  that  he  thereby 
acquired  at  least  a  qualified  property  in  them,  notwithstanding  they 
were  upon  the  land  of  another,  which  was  sufficient  to  enable  him 
to  maintain  this  action.  We  do  not  think  the  claim  can  be  substan- 
tiated. The  action  is  trover,  and,  in  order  to  recover,  the  plaintiff 
must  prove  title,  some  title,  in  himself,  coupled  with  possession  or 
the  right  of  immediate  possession.  We  do  not  think  he  has  proved 
either. 

Bees  in  /,7v  natures  and  the  only  ownership  in  them  until 
rii  [aimed  and  hived  is  r<iti<>>w  so//.  This  qualified  ownership,  how- 
ever, although  exi  eedingly  precarious  and  of  uncertain  tenure,  can- 
not  be   changed   or   terminated   by  the  act  of  a  mere   trespasser. 


VIII.]  PROPERTY    IN   FISH    AND    GAME.  367 

That  is  to  say,  the  act  of  reducing  a  thing  f era  natura  into  posses- 
sion, where  title  is  thereby  created,  must  not  be  wrongful.  And  if 
such  an  act  is  effected  by  one  who  is  at  the  moment  a  trespasser,  no 
title  to  the  property  is  created.  Blades  v.  Higgs,  11  H.  L.  621. 
"  Property  ratione  soli,"  said  the  Lord  Chancellor,  in  said  case,  "  is 
the  common-law  right  which  every  owner  of  land  has  to  kill  and 
take  all  such  animals  ferce  natural  as  may  from  time  to  time  be  found 
on  his  land,  and,  as  soon  as  this  right  is  exercised,  the  animal  so 
killed  or  caught  becomes  the  absolute  property  of  the  owner  of  the 
soil."  It  is  further  held  in  the  same  case  that  such  animals,  when 
found,  killed,  and  taken  by  a  mere  trespasser,  became  also  the  prop- 
erty of  the  owner  of  the  land,  the  same  as  if  taken  by  him  or  his 
servants.  See  Sutton  v.  Moody,  Ld.  Raym.  250;  Earl  of  Lonsdale 
v.  Rigg,  11    Exch.    Rep.    654;  Rigg   v.  Earl  of  Lonsdale,  1  H.  &   N. 

923- 

We  understand  that  the  law  in  this  country  with  regard  to  prop- 
erty in  animals  fercz  naturce  is  substantially  in  accord  with  that  of 
England,  excepting,  of  course,  all  game  laws  and  statutory  regula- 
tions, which  are  now  very  numerous  upon  this  subject.  See  Idol  v. 
Jones,  2  Dev.  162. 

In  support  of  the  plaintiff's  position  in  the  case  at  bar,  he  cites 
the  following  authorities,  namely:  1  Swift's  Digest,  169;  2  Black- 
stone  Comment.  *393;  2  Kent  Comment.  *35o;  2  Inst.  1,  14,  15; 
Merrils  v.  Goodwin,  1  Root,  209;  Gillett  v.  Mason,  7  Johns.  Rep.  16; 
and  Goffv.  Kilts,  15  Wend.  550.  All  of  these  authorities,  in  so  far 
as  they  are  pertinent,  omitting,  of  course,  the  citations  from  the 
civil  law,  which  is  not  in  force  here,  tend  in  our  judgment  to  support 
the  defendant's  position  rather  than  that  of  the  plaintiff. 

The  case  of  Merrils  v.  Goodwin,  cited  by  the  plaintiff,  decides 
that  a  man's  finding  bees  in  a  tree  standing  upon  another  man's 
land,  gives  him  no  right  either  to  the  tree  or  the  bees;  and  that  a 
swarm  of  bees  going  from  a  hive,  if  they  can  be  followed  and  iden- 
tified, are  not  lost  to  the  owner,  but  may  be  reclaimed.  That  is  to 
say,  a  man  may  pursue  his  property  of  this  sort  even  upon  the  land 
of  another,  and  retake  it,  and  this,  although  the  owner  might  be  liable 
for  a  trespass  in  so  doing. 

Gillett  v.  Mason,  7  Johns.  Rep.  16,  cited  by  the  plaintiff,  also 
recognizes  the  doctrine  of  a  qualified  ownership  in  bees,  ratione  soli; 
and  while  it  decides  that  hiving  or  inclosing  them  gives  property 
therein,  and  that  he  who  first  incloses  them  in  a  hive  becomes  their 
proprietor,  yet  it  is  clear  from  the  general  tenor  of  the  case,  as 
from  the  note  which  follows  it,  that  it  "  must  be  understood  with 
the   restriction   that  a   person   could   not   come    upon    the    land  of 


368      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.  CH.  II. 

another    without    his    consent,    for    the    purpose    of    taking  bees, 
although  unreclaimed. " 

The  case  of  Goff  v.  Kilts,  15  Wend.  550,  is  clearly  against  the 
position  taken  by  the  plaintiff.  *  *  *  See,  also,  Ferguson  v. 
Miller,  1  Cow.  243;  Adams  v.  Burton,  43  Vt.  36,  38,  and  Bennett, 
Farm  Law,  64. 

In  the  case  at  bar  the  plaintiff  was  a  trespasser  upon  the  land  of 
Green  from  the  beginning.  He  had  no  right  to  place  the  box  or 
hive  in  the  tree;  and  by  placing  it  there  he  acquired  no  title  to  the 
bees  which  subsequently  occupied  it,  or  to  the  honey  which  they 
produced.  Neither  is  it  material  to  the  issue  for  us  to  inquire 
whether  the  defendant,  by  taking  the  bees  and  honey  away  without 
previous  permission  from  the  owner  of  the  land,  was  also  a  tres- 
passer; for  even  admitting  that  he  was,  does  not  in  any  way  aid  the 
plaintiff  in  this  suit.  The  fact  that  A.  commits  a  trespass  upon  land 
of  B.,  and  carries  away  some  of  his  personal  property,  would  hardly 
be  considered  a  cause  of  action  in  favor  of  C.     *     *     * 

Exceptions  overruled. 


GOFF  v.  KILTS. 
15  Wendell  (N.  Y.),  550.  —  1836. 

By  the  Court,  Nelson,  J.  —  Animals  ferce  naturce,  when  reclaimed 
by  the  art  and  power  of  man,  are  the  subject  of  a  qualified  prop- 
erty; if  they  return  to  their  natural  liberty  and  wildness,  without 
the  animus  revertendi,  it  ceases.  During  the  existence  of  the  quali- 
fied property,  it  is  under  the  protection  of  the  law  the  same  as  any 
other  property,  and  every  invasion  of  it  is  redressed  in  the  same 
manner.  Bees  are  ferx  natune,  but  when  hived  and  reclaimed,  a 
person  may  have  a  qualified  property  in  them  by  the  law  of  nature, 
as  well  as  the  civil  law.  Occupation,  that  is,  hiving  or  enclosing 
them,  gives  property  in  them.  They  are  now  a  common  species  of 
property,  and  an  article  of  trade,  and  the  wildness  of  their  nature 
by  experience  and  practice  has  become  essentially  subjected  to  the 
art  and  power  of  man.  An  unreclaimed  swarm,  like  all  other  wild 
animals,  belongs  to  the  first  occupant  —  in  other  words,  to  the  per- 
son who  first  hives  them;  but  if  a  swarm  fly  from  the  hive  of  another, 
his  qualified  property  continues  so  long  as  he  can  keep  them  in  sight, 
and  possesses  the  power  to  pursue  them.  Under  these  circum- 
stances,  no  one  else  is  entitled  to  take  them.  2  Black.  Com.  393; 
2  Kent's  Com.  394. 

The  quest  ion  here  is  not  between  the  owner  of  the  soil  upon  which 
the  tree  stood  that  included  the  swarm,  and  the  owner  of  the  bees; 


VIII.]  PROPERTY    IN    FISH   AND    GAME.  369 

as  to  him,  the  owner  of  the  bees  would  not  be  able  to  regain  his 
property,  or  the  fruits  of  it  without  being  guilty  of  trespass.  But  it 
by  no  means  follows,  from  this  predicament,  that  the  right  to  the 
enjoyment  of  the  property  is  lost;  that  the  bees  therefore  become 
again  /era  natura,  and  belong  to  the  first  occupant.  If  a  domestic 
or  tame  animal  of  one  person  should  stray  to  the  enclosure  of 
another,  the  owner  could  not  follow  and  retake  it,  without  being 
liable  for  a  trespass.  The  absolute  right  of  property,  notwithstand- 
ing, would  still  continue  in  him.  Of  this  there  can  be  no  doubt. 
So  in  respect  to  the  qualified  property  in  the  bees.  If  it  continued 
in  the  owner  after  they  hived  themselves,  and  abode  in  the  hollow 
tree,  as  this  qualified  interest  is  under  the  same  protection  of  law  as 
if  absolute,  the  like  remedy  existed  in  case  of  an  invasion  of  it.  It 
cannot,  I  think,  be  doubted,  that  if  the  property  in  the  swarm  con- 
tinues while  within  sight  of  the  owner  —  in  other  words,  while  he 
can  distinguish  and  identify  it  in  the  air  —  that  it  equally  belongs 
to  him  if  it  settles  upon  a  branch  or  in  the  trunk  of  a  tree,  and 
remains  there  under  his  observation  and  charge.  If  a  stranger  has 
no  right  to  take  the  swarm  in  the  former  case,  and  of  which  there 
seems  no  question,  he  ought  not  to  be  permitted  to  take  it  in  the 
latter,  when  it  is  more  confined  and  within  the  control  of  the  occupant. 
It  is  said  the  owner  of  the  soil  is  entitled  to  the  tree  and  all 
within  it.  This  may  be  true,  so  far  as  respects  an  unreclaimed 
swarm.  While  it  remains  there  in  that  condition,  it  may,  like  birds 
or  other  game,  (game  laws  out  of  the  question),  belong  to  the  owner 
or  occupant  of  the  forest,  ratione  soli.  According  to  the  law  of 
nature,  where  prior  occupancy  alone  gave  right,  the  individual  who 
first  hived  the  swarm  would  be  entitled  to  the  property  in  it;  but 
since  the  institution  of  civil  society,  and  the  regulation  of  the  right 
of  property  by  its  positive  laws,  the  forest  as  well  as  the  cultivated 
field,  belong  exclusively  to  the  owner,  who  has  acquired  a  title  to  it 
under  those  laws.  The  natural  right  to  the  enjoyment  of  the  sport 
of  hunting  and  fowling,  wherever  animals  /era  natura  could  be 
found,  has  given  way,  in  the  progress  of  society,  to  the  establish- 
ment of  rights  of  property  better  defined  and  of  a  more  durable 
character.  Hence  no  one  has  a  right  to  invade  the  enclosure  of 
another  for  this  purpose.  He  would  be  a  trespasser,  and  as  such 
liable  for  the  game  taken.  An  exception  may  exist  in  the  case  of 
noxious  animals,  destructive  in  their  nature.  Mr.  Justice  Black- 
stone  says,  if  a  man  starts  game  in  another's  private  grounds,  and 
kills  it  there,  the  property  belongs  to  him  in  whose  ground  it  is 
killed,  because  it  was  started  there,  the  property  arising  ratione  soli. 
2   Black.    Com.   419.      But   if   animals  /era  natura  that   have   been 

LAW  OF  PROP.   IN  LAND  —  24 


370      CONSTITUENTS   AND    INCIDENTS    OF   LAND.      [PT.  II.  CII.  II. 

reclaimed,  and  a  qualified  property  obtained  in  them,  escape  into 
the  private  grounds  of  another  in  a  way  that  does  not  restore  them 
to  their  natural  condition,  a  different  rule  obviously  applies.  They 
are  then  not  exposed  to  become  the  property  of  the  first  occupant. 
The  right  of  the  owner  continues,  and  though  he  cannot  pursue  and 
take  them  without  being  liable  for  a  trespass,  still  this  difficulty 
should  not  operate  as  an  abandonment  of  the  animals  to  their  former 
liberty.  The  rights  of  both  parties  should  be  regarded,  and  recon- 
ciled as  far  as  is  consistent  with  a  reasonable  protection  of  each. 
The  cases  of  Herrmance  v.  Vernay,  6  Johns.  R.  5,  and  Blake  v. 
Jerome,  14  Id.  406,  are  authorities  for  saying,  if  any  were  wanted, 
that  the  inability  of  the  owner  of  a  personal  chattel  to  retake  it 
while  on  the  premises  of  another,  without  committing  a  trespass, 
does  not  impair  his  legal  interest  in  the  property.  It  only  embar- 
rasses the  use  or  enjoyment  of  it.  The  owner  of  the  soil,  there- 
fore, acquiring  no  right  to  the  property  in  the  bees,  the  defendant 
below  cannot  protect  himself  by  showing  it  out  of  the  plaintiff  in 
that  way.  It  still  continues  in  him,  and  draws  after  it  the  posses- 
sion sufficient  to  maintain  this  action  against  a  third  person,  who 
invades  it  by  virtue  of  no  other  claim  than  that  derived  from  the 
law  of  nature.  This  case  is  distinguished  from  the  cases  of  Gillet 
v.  Mason,  7  Johns.  R.  16,  and  Ferguson  v.  Miller,  1  Cowen,  243. 
The  first  presented  a  question  between  the  finder  and  a  person 
interested  in  the  soil;  the  other  between  two  persons,  each  claiming 
as  the  first  finder.  The  plaintiff  in  the  last  case,  though  the  first 
finder,  had  not  acquired  a  qualified  property  in  the  swarm  according 
to  the  law  of  prior  occupancy.  The  defendant  had.  Besides,  the 
swarm  being  unreclaimed  from  their  natural  liberty  while  in  the 
tree,  belonged  to  the  owner  of  the  soil  ratione  soli.  For  these 
reasons  I  am  of  opinion  that  the  judgment  of  the  court  below  should 
be  affirmed.  Tudgment  affirmed. 


M'CONICO  v.  SINGLETON. 

2  Mills  (S.  C.  Const.  Rep.),  244.  —  1818. 

Johnson,  J.,  delivered  the  opinion  of  the  court. — Until  the  bring- 
ing of  this  action,  the  right  to  hunt  on  unenclosed  and  uncultivated 
lands  has  never  been  disputed,  and  it  is  well  known  that  it  has  been 
universally  exercised  from  the  first  settlement  of  the  country  up  to 
the  present  time;  and  the  time  has  been,  when,  in  all  probability, 
obedient  as  our  ancestors  were  to  the  law  of  the  country,  a  civil  war 
would  have  been  tin-  1  onsequence  <>f  an  attempt,  even  by  the  legis- 
lature, to  enforce  a   restraint  on   this   privilege.      It  was  the  source 


VIII.]  PROPERTY    IN    FISH    AND    GAME.  371 

from  whence  a  great  portion  of  them  derived  their  food  and  rai- 
ment, and  was  to  the  devoted  huntsman,  (disreputable  as  the  life 
now  is),  a  source  of  considerable  profit.  The  forest  was  regarded 
as  a  common,  in  which  they  entered  at  pleasure,  and  exercised  the 
privilege;  and  it  will  not  be  denied  that  animals,  ferce  naturce,  are 
common  property,  and  belong  to  the  first  taker.  If,  therefore, 
usage  can  make  law,  none  was  ever  better  established.  This  usage 
is  also  clearly  recognized  as  a  right  by  the  several  acts  of  the  legis- 
lature on  the  subject;  particularly  the  act  of  1769  (Pub.  Laws, 
276),  which  restrains  the  right  to  hunt  within  seven  miles  of  the 
residence  of  the  hunter.  Now  if  the  right  to  hunt  beyond  that,  did 
not  before  exist,  this  act  was  nugatory;  and  it  cannot  be  believed 
that  it  was  only  intended  to  apply  to  such  as  owned  a  tract  of  land, 
the  diameter  of  which  would  be  fourteen  miles.  It  appears  to  me 
also,  that  there  is  no  rule  of  the  English  common  law,  at  variance 
with  this  principle;  but,  it  is  said,  that  every  entry  on  the  lands  of 
another  is  a  trespass,  and  the  least  injury,  as  treading  down  grass 
and  the  like,  will  support  it.  (1  Esp.  Dig.,  tit.  Trespass,  221.) 
But  there  must  be  some  actual  injury  to  support  the  action.  Now 
it  will  not  be  pretended  that  riding  over  the  soil  is  an  injury;  and 
the  forest  being  the  common,  in  which  the  cattle  of  all  are  used  to 
range  at  large,  the  grass,  if  perchance  there  be  any,  may  also  be 
regarded  as  common  property;  and  surely  no  action  will  lie  against 
a  commoner  for  barely  riding  over  the  common.  The  right  to  hunt 
on  unenclosed  lands,  I  think,  therefore,  clearly  established,  but  if  it 
were  doubtful,  I  should  be  strongly  inclined  to  support  it.  Large 
standing  armies  are,  perhaps,  wisely  considered  as  dangerous  to  our 
free  institutions;  the  militia,  therefore,  necessarily  constitutes  our 
greatest  security  against  aggression;  our  forest  is  the  great  field  in 
which,  in  the  pursuit  of  game,  they  learn  the  dexterous  use  and  con- 
sequent certainty  of  firearms,  the  great  and  decided  advantage  of 
which  have  been  seen  and  felt  on  too  many  occasions  to  be  forgot- 
ten, or  to  require  a  recurrence  to. 

Having  come  to  the  conclusion  that  it  is  the  right  of  the  inhabit- 
ants to  hunt  on  unenclosed  lands,  I  need  not  attempt  to  prove  that 
the  dissent  or  dissapprobation  of  the  owner  cannot  deprive  him  of 
it;  for  I  am  sure  it  never  yet  entered  the  mind  of  any  man,  that  a 
right  which  the  law  gives,  can  be  defeated  at  the  mere  will  and 
caprice  of  an  individual.     *     *     * 

Let  the  motion  be  dismissed.1 

1  See  also  Broughlon  v.  Singleton,  2  Nott  &  McCords  (S.  C),  338.  —  1820. 
The  game  laws  of  the  various  States  usually  have  some  bearing  upon  the 
general  question  here  discussed.  —  Ed. 


^;2      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.  CH.  II. 

IX.  Minerals.1 

Coffev,  J.,  in  THE  PEOPLE'S  GAS  CO.  v.  TYNER. 
131  Indiana,  277.  — 1891. 

[Appellants  contend]  that  they  had  the  right  to  use  their  own 
property  as  to  them  seemed  best,  and  for  that  reason,  they  could 
not  be  enjoined  from  exploding  nitro-glycerine  in  their  well  for  the 
purpose  of  increasing  the  flow  of  natural  gas,  though  such  explosion 
might  have  the  effect  to  draw  the  gas  from  the  land  of  the 
appellee.     *     *     * 

On  the  other  hand,  it  is  contended  by  the  appellee:  *  *  * 
that  natural  gas  is  property,  and  that  the  appellants  have  no  legal 
right  to  do  anything  upon  their  own  land  which  will  draw  such  gas 
from  his  land,  and  appropriate  it  to  their  own  use.     *     *     * 

It  has  been  settled  in  this  state  that  natural  gas,  when  brought  to 
the  surface  of  the  earth  and  placed  in  pipes  for  transportation,  is 
property,  and  may  be  the  subject  of  interstate  commerce.  State, 
ex  rel.  v.  Indiana,  etc.,  Co.,    120  Ind.  575. 

Water,  petroleum  oil  and  gas  are  generally  classed  by  themselves 
as  minerals  possessing,  in  some  degree,  a  kindred  nature.  As  to 
whether  the  owner  of  the  soil  may  dig  down  and  divert  a  well- 
defined  subterranean  stream  of  water  there  is  much  diversity  of 
opinion  and  conflict  in  the  adjudicated  cases,  but  the  authorities 
agree  that  the  owner  of  a  particular  tract  of  land  may  sink  a  well 
and  appropriate  to  his  own  use  all  the  percolating  water  found 
therein,  though  it  may  entirely  destroy  the  well  on  his  neighbor's 
land.  Angell,  Watercourses,  §  112;  Hanson  v.  McCue,  42  Cal. 
303;  Wheatley  v.  Baugh,  25  Pa.  St.  528;  Frazier  v.  Brown,  12 
Ohio  St.  294-  Acton  v.  Blundell,  12  M.  &  W.  324;  Delhi,  Trustees, 
etc.,  of  v.  Youmans,  50  Barb.  316;  Mosier  v.  Caldwell,  7  Nev.  363; 
New  Albany,  etc.,  R.  R.  Co.  v.  Peterson,  14  Ind.  112;  City  of  Green- 
castle  v.  Hazelitt,    23  Ind.  186. 

It  is  a  familiar  maxim  that  in  contemplation  of  law  land  always 
extends  downward  as  well  as  upwards,  so  that  whatever  is  in  direct 
line  between  the  surface  of  any  land  and  the  center  of  the  earth 
belongs  to  the  owner  of  the  surface.  Mr.  Angell  says  that  it  would 
-'•'11)  to  follow  from  this  maxim  that  whether  what  is  subterranean 
be  -.olid  ruck,  mines  or  porous  soil,  or  salt  springs,  or  part  land  and 
put  water,  the  person  who  owns   the  surface  may  dig  therein  and 

1  See  also  Ffuff  \.  \fcCauley,  53  Pa.  St.  200,  supra,  p.  76;  Caldwtl!  v.  Fulton,  31 
Pa.  Si.  475,    upra,  \>.  102. 


IX.]  MINERALS.  373 

apply    all    that    is    there    found    to    his    own     purposes    ad  libitum. 
Angell,  Watercourses,  §  109. 

Upon  this  principle  it  was  held  by  this  court  in  the  case  of  New 
Albany t  etc.,  R.  R.  Co.  v.  Peterson,  supra,  that  if  an  adjoining  land- 
owner, in  lawfully  digging  upon  his  own  land,  draws  the  water  from 
the  land  of  another,  to  his  injury,  such  injury  falls  within  the 
description  of  damnum  absque  injuria,  which  cannot  become  the 
ground  of  an  action. 

In  the  case  of  Haldeman  v.  Bruckhart,  45  Pa.  St.  514,  it  was  said: 
"  The  purchaser  of  lands  on  which  there  are  unknown  sub-surface 
currents,  must  buy  in  ignorance  of  any  obstacle  to  the  full  enjoy- 
ment of  his  purchase  indefinitely  downwards,  and  the  purchaser  of 
lands  on  which  a  spring  rises,  ignorant  whence  and  how  the  water 
comes,  cannot  bargain  for  any  right  to  a  secret  flow  of  water  in 
another's  land." 

Mr.  Gould,  in  his  works  on  "  Waters,"  2d  ed.,  section  291,  says: 
"  Petroleum  oil,  like  subterranean  water,  is  included  in  the  compre- 
hensive idea  which  the  law  attaches  to  the  word  land,  and  is  a  part 
of  the  soil  in  which  it  is  found.  Like  water,  it  is  not  the  subject  of 
property  except  while  in  actual  occupancy,  and  a  grant  of  either 
water  or  oil  is  not  a  grant  of  the  soil  or  of  anything  for  which  eject- 
ment will  lie." 

In  recognition  of  the  principle  here  announced,  in  the  case  of 
Brown  v.  Vandegrift,  80  Pa.  St.  142,  it  was  said  by  the  court  that 
"  The  discovery  of  petroleum  led  to  new  forms  of  leasing  land.  Its 
fugitive  and  wandering  existence  within  the  limits  of  a  particular 
tract  was  uncertain,  and  assumed  certainly  only  by  actual  develop- 
ment founded  upon  experiment." 

What  is  said  of  the  fugitive  character  of  percolating  water  and  of 
petroleum  oil  applies  with  greater  force  to  natural  gas. 

In  the  case  of  Westmoreland,  etc.,  Gas  Co.  v.  DeWitt,  130  Pa.  St. 
235,  it  was  said:  "  Water  and  oil,  and  still  more  strongly  gas,  may 
be  classed  by  themselves,  if  the  analogy  be  not  too  fanciful,  as 
minerals  feroz  natures.  In  common  with  animals,  and  unlike  other 
minerals,  they  have  the  power  and  the  tendency  to  escape  without 
the  volition  of  the  owner.  Their  fugitive  and  wandering  existence 
within  the  limits  of  a  particular  tract  is  uncertain.  *  *  *  They 
belong  to  the  owner  of  the  land  and  are  a  part  of  it,  so  long  as  they 
are  on  or  in  it,  and  are  subject  to  his  control;  but  when  they 
escape,  and  go  into  other  land,  or  come  under  another's  control,  the 
title  of  the  former  owner  is  gone.  Possession  of  the  land,  therefore, 
is  not  necessarily  possession  of  the  gas.  If  an  adjoining,  or  even  a 
distant,  owner,  drills  his  own  land,   and   taps  your  gas,  so  that  it 


374      CONSTITUENTS   AND    INCIDENTS   OF   LAND.       [PT.  II.   CII.  II. 

comes  into  his  well  and  under  his  control,  it  is  no  longer  yours, 
but  his." 

It  is  not  denied  by  the  appellee  in  this  case  that  the  appellants 
have  the  perfect  legal  right  to  sink  a  well  into  their  own  land  and 
draw  therefrom  all  the  gas  that  may  naturally  flow  to  it;  but  he  con- 
tends that  they  have  no  right  to  explode  nitro-glycerine  in  the  well 
to  increase  the  natural  flow. 

When  it  is  once  conceded  that  the  owner  of  the  surface  has  the 
right  to  sink  a  well  and  draw  gas  from  the  lands  of  an  adjoining 
owner,  no  valid  reason  can  bt  given  why  he  may  not  enlarge  his 
well  by  the  explosion  of  nitro-glycerine  therein  for  the  purpose  of 
increasing  the  flow.  The  question  is  not  as  to  the  quantity  of  gas 
he  may  take,  but  it  is  a  question  of  his  right  to  take  the  gas  at  all. 

So  far  as  this  suit  seeks  to  enjoin  the  appellants  from  exploding 
nitro-glycerine  in  their  gas  well,  upon  the  ground  that  it  will 
increase  the  flow  of  the  gas  to  the  injury  of  the  appellee,  it  cannot, 
in  our  opinion,  be  sustained. 


MOORE  v.  SMAW. 
17  California,  199.  —  1861. 


Action  by  Moore  to  recover  for  gold  extracted  and  removed  from 
his  premises  by  defendant.  A  demurrer  was  interposed,  the  sub- 
stance of  which  is  that  the  title  of  the  plaintiff,  as  disclosed  by  the 
complaint,  was  of  such  a  character  as  to  vest  in  him  only  the  owner- 
ship of  the  soil,  without  any  interest  in  the  minerals  of  gold  and 
silver  which  it  contained. 

In  the  case  of  Fremont  v.  Flower,  which  involves  the  same  ques- 
tions, and  was  argued  herewith,  an  answer  was  interposed,  in  which 
it  was  alleged  that  Fremont  never  had  any  interest  in  the  gold  or 
gold-bearing  quartz  contained  in  the  soil,  and  further,  in  a  first 
count,  that  they  are  the  absolute  and  exclusive  property  of  the  state 
of  California,  and,  in  a  second  count,  that  they  are  in  like  manner 
the  absolute  and  exclusive  property  of  the  United  States. 

Plaintiffs  trace  back  their  title  in  each  case  to  a  grant  from  the 
Mi :xi<  an  government  confirmed  by  patents  from  the  United  States, 
which  patents  make  no  reservations  of  minerals  or  mineral  lands. 

At  tin-  time  of  the  original  grants  by  the  Mexican  government 
"  it  was  the  established  doctrine  of  the  Mexican  law  that  all  mines 
of  x<>\<\  ami  silver  in  the  country,  though  found  in  the  lands  of  pri- 
vate individuals,  were  the  property  of  the  nation.  No  interest  in 
the  minerals  passed  by  a  grant  from  the  government  of  the  land  in 


IX.]  MINERALS.  375 

which    they  were    contained,    without    express    words    designating 
them."     There  were  no  such  words  in  these  grants. 

Field,  C.  J.  —  *  *  *  VVe  do  not  understand  that  this  con- 
clusion [that  the  gold  did  not  pass  under  the  Mexican  grant]  is  con- 
troverted by  the  defendants;  but  two  positions  are  advanced  by 
them  which,  though  inconsistent  with  each  other,  would,  if  sus- 
tained, be  equally  availing  against  the  claims  of  the  plaintiffs: 
ist,  that  the  minerals  of  gold  and  silver,  which  passed  by  the  ces- 
sion, were  held  by  the  United  States  in  trust  for  the  future  state, 
and  that  upon  the  admission  of  California  the  ownership  of  them 
vested  in  her;  and,  2d,  that  the  minerals  remain  the  property  of  the 
United  States,  and  did  not  pass  by  their  patents. 

The  first  position  finds  support  in  the  decision  of  Hicks  v.  Bell,  3 
Cal.  219,  where  this  court  held  that  the  mines  of  gold  and  silver 
found  in  the  public  lands  are  the  property  of  the  state  by  virtue  of 
her  sovereignty;  and  assumed  that  similar  mines  in  the  lands  of  pri- 
vate citizens  also  belonged  to  her  by  the  same  right.  That  decision 
has  not  met  the  approbation  of  the  profession  or  retained  the  appro- 
bation of  the  distinguished  judge  who  delivered  it.  The  question 
as  to  the  ownership  of  the  minerals  was  not  raised  by  counsel,  and 
its  determination  was  not  required  for  the  disposition  of  the  case. 
But  independent  of  this  consideration  which  only  goes  to  the  force 
of  the  decision  as  authority,  we  are  clear  that  the  doctrine  there 
advanced  cannot  be  sustained.  It  is  undoubtedly  true  that  the 
United  States  held  certain  rights  of  sovereignty  over  the  territory 
which  is  now  embraced  within  the  limits  of  California,  only  in  trust 
for  the  future  State,  and  that  such  rights  at  once  vested  in  the  new 
State  upon  her  admission  into  the  Union.  But  the  ownership  of  the 
precious  metals  found  in  public  or  private  lands  was  not  one  of 
those  rights.  Such  ownership  stands  in  no  different  relation  to  the 
sovereignty  of  a  State  than  that  of  any  other  property  which  is  the 
subject  of  barter  and  sale.  Sovereignty  is  a  term  used  to  express 
the  supreme  political  authority  of  an  independent  State,  or  nation. 
Whatever  rights  are  essential  to  the  existence  of  this  authority  are 
rights  of  sovereignty.  *  *  *  To  the  existence  of  this  political 
authority  of  the  State  —  this  qualified  sovereignty,  or  to  any  part  of 
it  —  the  ownership  of  the  minerals  of  gold  and  silver  found  within 
her  limits  is  in  no  way  essential.  The  minerals  do  not  differ  from 
the  great  mass  of  property,  the  ownership  of  which  may  be  in  the 
United  States,  or  in  individuals,  without  affecting  in  any  respect 
the  political  jurisdiction  of  the  State.  They  may  be  acquired  by 
the  State,  as  any  other  property  may  be,  but  when  thus  acquired  she 
will  hold  them  in  the  same  manner  that  individual  proprietors  hold 


376      CONSTITUENTS   AND    INCIDENTS   OF   LAND.      [PT.  II.  CIL  II. 

their  property,  and  by  the  same  right;  by  the  right  of  ownership, 
and  not  by  any  right  of  sovereignty. 

In  Hicks  v.  Bell,  the  court  states  correctly  that,  according  to  the 
common  law  of  England,  mines  of  gold  and  silver  were  the  exclu- 
sive property  of  the  crown,  and  did  not  pass  in  a  grant  of  the  king 
under  the  general  designation  of  lands  or  mines,  but  it  assumes  that 
this  right  of  the  crown  —  this  regalian  right  —  vested  in  the  State. 
"  It  is  hardly  necessary,"  in  the  language  of  the  opinion,  "  at  this 
period  of  our  history  to  make  an  argument  to  prove  that  the  several 
States  of  the  Union,  in  virtue  of  their  respective  sovereignties,  are 
entitled  to  the  jura  regalia  which  pertained  to  the  king  at  common 
law."  It  is  in  this  assumption  that  the  error  of  the  decision  con- 
sists. Under  the  general  designation  of  jura  regalia  are  compre- 
hended not  only  those  rights  which  pertain  to  the  political  character 
and  authority  of  the  king,  but  also  those  rights  which  are  incidental 
to  his  regal  dignity,  and  may  be  severed  at  his  pleasure  from  the 
crown  and  vested  in  his  subjects.  It  is  only  to  certain  rights  of  the 
first  class  that  the  States,  by  virtue  of  their  respective  sovereignties, 
are  entitled.  It  is  to  the  second  class  that  the  right  to  the  mines  of 
gold  and  silver  belongs. 

In  the  great  case  of  The  Queen  v.  The  Earl  of  Northumberland,  1 
Ploden,  310,  which  was  argued  before  the  Barons  of  the  Exchequer 
and  all  the  justices  of  England,  it  was  held  by  their  unanimous 
judgment,  "  that  by  the  law  all  mines  of  gold  and  silver  within  the 
realm,  whether  they  be  in  the  lands  of  the  queen  or  of  subjects, 
belong  to  the  queen  by  prerogative,  with  liberty  to  dig  and  carry 
away  the  ores  thereof  and  with  other  such  incidents  thereto  as  are 
necessary  to  be  used  for  the  getting  of  the  ore;"  and  also,  "  that 
a  mine  royal,  either  of  base  metal  containing  gold  or  silver  or  of 
pure  gold  and  silver  only,  may,  by  the  grant  of  the  king,  be  severed 
from  the  crown,  and  be  granted  to  another,  for  it  is  not  an  incident 
inseparable  to  the  crown,  but  may  be  severed  from  it  by  apt  and 
precise  words."  This  case  was  decided  in  1568,  during  the  reign  of 
Queen  Elizabeth,  and  continues  unto  this  day  an  authoritative 
exposition  of  the  doctrine  of  the  common  law.  It  is  conclusive  to 
the  point  that  the  right  to  the  mines  was  not  regarded  by  that  law 
as  an  incident  of  sovereignty,  but  was  regarded  as  a  personal  pre- 
rogative of  the  king,  which  could  be  alienated  at  Ids  pleasure. 

No  reasons  in  support  of  the  prerogative  are  stated  in  the  resolu- 
tion of  the  judges,  and  those  advanced  in  argument  by  the  queen's 
isel  would  be  without  force  at  the  present  time.  Onslow,  the 
queen's  solicitor,  says  Plowden,  "  alleged  three  reasons  why  the 
king  shall  have  mines  and  ores  of  gold  and   silver  within  the  realm, 


IX.]  MINERALS.  377 

in  whatsoever  land  they  are  found.  The  first  was,  in  respect  to  the 
excellency  of  the  thing,  for  of  all  things  which  the  soil  within  this 
realm  produces  or  yields,  gold  and  silver  is  the  most  excellent,  and 
of  all  persons  in  the  realm,  the  king  is,  in  the  eye  of  the  law,  most 
excellent.  And  the  common  law,  which  is  founded  upon  reason, 
appropriates  everything  to  the  person  whom  it  best  suits,  as  com- 
mon and  trivial  things  to  the  common  people,  things  of  more  worth 
to  persons  in  a  higher  and  superior  class,  and  things  most  excellent 
to  those  persons  who  excel  all  others;  and  because  gold  and  silver 
are  the  most  excellent  things  which  the  soil  contains,  the  law  has 
appointed  them  (as  in  reason  it  ought)  to  the  person  who  is  most 
excellent,  and  that  is  the  king.  .  .  .  The  second  reason  was, 
in  respect  to  the  necessity  of  the  thing.  For  the  king  is  the  head 
of  the  weal-public  and  the  subjects  are  his  members;  and  the  office 
of  the  king,  to  which  the  law  has  appointed  him,  is  to  preserve  his 
subjects,  and  their  preservation  consists  in  two  things,  viz.:  in  an 
army  to  defend  them  against  hostilities,  and  in  good  laws.  And  an 
army  cannot  be  had  and  maintained  without  treasure,  for  which 
reason  some  authors,  in  their  books,  call  treasure  the  sinews  of  war; 
and,  therefore,  inasmuch  as  God  has  created  mines  within  this 
realm,  as  a  natural  provision  of  treasure  for  the  defense  of  the 
realm,  it  is  reasonable  that  he  who  has  the  government  and  care  of 
the  people,  whom  he  cannot  defend  without  treasure,  should  have 
the  treasure  wherewith  to  defend  them.  .  .  .  The  third  reason 
was,  in  respect  of  its  convenience  to  the  subjects  in  the  way  of 
mutual  commerce  and  traffic.  For  the  subjects  of  the  realm  must, 
of  necessity,  have  intercourse  or  dealing  with  one  another,  for  no 
individual  is  furnished  with  all  necessary  commodities,  but  one  has 
need  of  the  things  which  another  has,  and  they  cannot  sell  or  buy 
together  without  coin.  .  .  .  And  if  the  subject  should  have  it 
(the  ore  of  gold  or  silver),  the  law  would  not  permit  him  to  coin  it,  nor 
put  a  print  or  value  upon  it,  for  it  belongs  to  the  king  only  to  fix  the 
value  of  coin,  and  to  ascertain  the  price  of  the  quantity,  and  to  put 
the  print  upon  it,  which  being  done,  the  coin  becomes  current  for  so 
much  as  the  king  has  limited.  But  if  the  subject  should  have  the 
ore  of  gold  and  silver  which  is  found  in  his  land,  he  could  not  con- 
vert it  into  coin,  nor  put  any  print  or  value  on  it.  For  if  he  makes 
coin,  it  was  high  treason  by  the  common  law  before  the  statutes  of 
25th  Ed.,  3  Cap.  2,  as  it  appears  by  23d  Ass.,  where  a  woman  was 
burnt  for  forging  or  counterfeiting  money,  and  it  was  high  treason 
to  the  king,  because  he  has  the  sole  power  to  make  money.  So  that 
the  body  of  the  realm  would  receive  no  benefit  or  advantage  if  the 
subject  should  have  the  gold  and  silver  found  in  mines  in  his  lands; 


378      CONSTITUENTS   AND    INCIDENTS   OF    LAND.       [PT.  II.   CH.  II. 

but,  on  the  other  hand,  by  appropriating  it  to  the  king,  it  tends  to 
the  universal  benefit  of  all  the  subjects  in  making  their  king  able  to 
defend  them  with  an  army  against  all  hostilities;  and  when  he  has  put 
the  print  and  value  upon  it,  and  has  dispersed  it  among  his  subjects, 
they  are  thereby  enabled  to  carry  on  mutual  commerce  with  one 
another,  and  to  buy  and  sell  as  they  have  occasion,  and  to  traffic  at 
their  pleasure.  Therefore,  for  these  reasons,  viz.,  for  the  excel- 
lency of  the  thing,  and  for  the  necessity  of  it,  and  the  convenience 
that  will  accrue  to  the  subjects,  the  common  law,  which  is  no  other 
than  pure  and  tried  treason,  has  appropriated  the  ore  of  gold  and 
silver  to  the  king  in  whatever  land  it  be  found." 

It  would  be  a  waste  of  time  to  show  that  none  of  the  reasons  thus 
advanced  in  support  of  the  right  of  the  crown  to  the  mines  can  avail 
to  sustain  any  claim  of  the  State  to  them.  The  State  takes  no  prop- 
erty by  reason  of  "  the  excellency  of  the  thing,"  and  taxation  fur- 
nishes all  the  requisite  means  for  the  expense  of  government.  The 
convenience  of  citizens  in  commercial  transactions  is  undoubtedly 
promoted  by  a  supply  of  coin,  and  the  right  of  coinage  appertains 
to  sovereignty.  But  the  exercise  of  this  right  does  not  require  the 
ownership  of  the  precious  metals  by  the  State,  or  by  the  federal 
government,  where  this  right  is  lodged  under  our  system,  as  the 
experience  of  every  day  demonstrates. 

The  right  of  the  crown,  whatever  may  be  the  reasons  assigned  for 
its  maintenance,  had  in  truth  its  origin  in  an  arbitrary  exercise  of 
power  by  the  king,  which  was  at  the  time  justified  on  the  ground 
that  the  mines  were  required  as  a  source  of  revenue.  The  same 
regalian  right  was  recognized  on  the  continent,  as  in  England,  and 
of  its  origin,  Gamboa  in  his  commentary  on  the  mining  ordinances 
of  Philip  II.  thus  speaks:  "  Upon  the  breaking  up  of  the  Roman 
Empire,  the  princes  and  States  which  declared  themselves  independ- 
ent, appropriated  to  themselves  those  tracts  of  ground  in  which 
nature  has  dispensed  her  most  valuable  products  with  more  than 
ordinary  liberality,  which  reserved  portions  or  rights  were  called 
rights  of  the  crown.  Among  the  chief  of  the  valuable  products  are 
the  metallic  ores  of  the  first  class,  as  those  of  gold  and  silver,  and 
other  metals  proper  for  forming  money,  which  it  is  essential  for 
reigns  to  be  provided  with  in  order  to  support  their  warlike 
armaments  by  sea  and  land,  to  provide  for  the  public  necessities, 
and  to  maintain  the  good  government  of  their  dominions." 

It  follows  from  the  views  we  have  thus  expressed,  that  the  first 
position  advanced  by  the  defendants  cannot  be  sustained;  that  the 
gold  and  silver  which  passed  by  the  cession  from  Mexico  were  not 
held   by  the    United   States  in   trust  for  the  future  State;  that  the 


IX.]  MINERALS.  379 

ownership  of  them  is  not  an  incident  of  any  right  of  sovereignty; 
that  the  minerals  were  held  by  the  United  States  in  the  same  man- 
ner as  they  held  any  other  public  property  which  they  acquired  from 
Mexico;  and  that  their  ownership  over  them  was  not  lost,  or  in  any 
respect  impaired  by  the  admission  of  California  as  a  State. 

The  second  position  of  the  defendants  is,  that  if  the  minerals  did 
not  vest  in  the  State  by  her  admission  into  the  Union,  they  remained 
the  property  of  the  United  States  notwithstanding  their  patents  to 
the  Fernandez  and  to  Fremont.  This  position  is  not  based  upon 
any  language  of  the  patents;  for  it  is  admitted  that  their  terms  of 
grant  would  operate  in  case  of  a  conveyance  of  an  individual,  to  pass 
all  the  interest  which  the  grantor  could  possess  in  the  land.  It  is 
based  upon  the  supposition  that  as  the  Act  of  March  3d,  185 1,  pro- 
vides for  the  recognition  and  confirmation  of  the  rights  acquired  by 
the  grants  from  Mexico,  the  patents  were  only  intended  as  evidence 
on  the  part  of  the  United  States  of  such  recognition  and  confirma- 
tion. By  those  grants,  as  we  have  seen,  no  interest  in  the  minerals  of 
gold  and  silver  passed  to  the  grantees,  and  if  the  patents  amount  only 
to  an  acknowledgment  of  the  rights  derived  from  the  former  govern- 
ment, that  interest  still  remains  in  the  United  States.  This  view  of 
the  patents  is  not  justified  by  any  provisions  of  the  act.  The  object 
of  the  act  is  to  "  ascertain  and  settle  "  private  land  claims  in  Califor- 
nia. *  *  *  "  For  all  claims  finally  confirmed,"  reads  the  act, 
"  by  the  said  commissioners,  or  by  the  said  District  of  Supreme 
Court,  a  patent  shall  issue  to  the  claimant  upon  his  presenting  to 
the  general  land  office  an  authentic  certificate  of  such  confirmation, 
and  a  plot  or  survey  of  the  said  land,  duly  certified  and  approved  by 
the  surveyor-general  of  California." 

There  is  nothing  in  the  act  restricting  the  operation  of  the  pat- 
ents thus  issued  to  the  interests  acquired  by  claimants  from  the  for- 
mer government,  or  distinguishing  the  patents  in  any  respect  from 
the  general  class  of  conveyance  made,  under  that  designation,  by 
the  United  States.  To  all  claimants  alike,  whose  claims  have  been 
finally  confirmed,  patents  are  to  issue  without  words  of  reservation 
or  limitation,  with  the  exception  that  they  shall  not  affect  the  inter- 
ests of  third  persons,  an  exception  which  would  exist  independent 
of  its  legislative  recognition.  Such  being  the  case,  the  question 
arises  as  to  what  passed  by  the  patents  to  the  Fernandez  and  to  Fre- 
mont, and  to  this  question  there  can  be  but  one  answer:  all  the 
interest  of  the  United  States,  whatever  it  may  have  been,  in  every- 
thing connected  with  the  soil,  in  everything  forming  any  portion  of 
its  bed  or  fixed  to  its  surface,  in  everything  which  is  embraced 
within  the  signification  of  the  term  land,  and  that  term,  says  Black- 


380      CONSTITUENTS   AND    INCIDENTS   OF    LAND.      [PT.  II.   CH.  II. 

stone,  "  includes  not  only  the  face  of  the  earth,  but  everything 
under  it  or  over  it.  And,  therefore,"  he  continues,  "  if  a  man 
grants  all  his  lands,  he  grants  thereby  all  his  mines  of  metal,  and 
other  fossils,  his  woods,  his  waters,  and  his  houses,  as  well  as  his 
fields  and  meadows."  Book  II.  19.  Such  is  the  view  universally 
entertained  by  the  legal  profession  as  to  the  effect  of  a  patent  from 
the  general  government.  The  United  States  occupy,  with  refer- 
ence to  their  real  property  within  the  limits  of  the  State,  only  the 
position  of  a  private  proprietor,  with  the  exception  of  exemption 
from  State  taxation,  and  their  patent  of  such  property  is  subject  to 
the  same  general  rules  of  construction  which  apply  to  conveyances 
of  individuals.  From  the  operation  of  conveyances  of  this  nature, 
that  is,  of  individuals,  the  minerals  of  gold  and  silver  are  not 
reserved  unless  by  express  terms.  They  pass  with  the  transfer  of 
the  soil  in  which  they  are  contained.  And  the  same  is  true  of  the 
operation  of  the  patent  —  the  instrument  of  transfer  of  the  govern- 
mental proprietor,  the  United  States;  no  interest  in  the  minerals 
remains  in  them  without  a  similar  reservation.  Nor  is  there  any- 
thing in  the  language  of  the  Supreme  Court,  in  the  opinion  rendered 
in  the  Fremont  Case,  which  gives  countenance  to  any  other  view. 
The  attorney-general  of  the  United  States  objected  to  the  confir- 
mation of  the  claim  of  Fremont  upon  the  ground  that  the  grant  of 
Alvarado  contained  mines  of  gold  and  silver.  His  argument  was  to 
this  effect:  that  as  the  mines  did  not  pass  to  the  grantee  by  the 
Mexican  law,  the  claim  should  not  be  confirmed,  as  Fremont  would 
obtain  as  a  consequence  of  such  confirmation  a  patent  which  would 
pass  the  minerals,  to  which,  by  the  original  grant,  he  was  not 
entitled.  But  to  this  the  court  replied  that,  under  the  mining  laws 
of  Spain,  the  discovery  of  a  mine  of  gold  and  silver  did  not  destroy 
the  title  of  the  individual  to  the  land  granted,  and  that  the  only 
question  before  the  court  was  the  validity  of  the  title;  and  whether 
there  were  any  mines  in  the  land,  and  if  there  were  any,  what  were 
the  rights  of  sovereignty  in  them  were  questions  which  must  be 
decided  in  another  form  of  proceeding,  and  were  not  submitted  to 
the  jurisdiction  of  the  commissioners  or  the  court  by  the  act  of 
185 1 ;  in  other  words,  the  court  said,  in  substance,  that  its  considera- 
tion was  confined  to  the  title  presented,  and  the  effect  of  its  decree 
ami  the  patent  following  it  upon  the  ownership  of  the  minerals  was 
a  matter  with  which  it  had  nothing  to  do. 

The  construction  .^iven  by  the  United  States  to  their  patents  ever 
gince  the  organization  of  the  government,  has  uniformly  been  to 
the  same  effe<  1.  In  several  of  the  States,  particularly  those  carved 
out    of     the    territories    ceded    by    Virginia,    North    Carolina,    and 


IX.  J  MINERALS.  38 1 

Georgia,  and  out  of  the  territory  acquired  by  the  treaty  with  France 
in  1803,  and  by  the  treaty  with  Spain  in  1819,  the  title  to  a  large 
portion  of  the  lands  is  held  under  patents  from  the  United  States. 
Some  of  these  patents  were  issued  upon  a  sale  of  lands;  some  of 
them  upon  a  donation  of  lands;  and  some  of  them  upon  a  confirma- 
tion by  boards  of  commissioners  of  previously  existing  grants  of  the 
former  governments.  They  were  issued  to  extensive  tracts  in  the 
territories  of  Louisiana,  Mississippi,  and  Florida,  and  in  many 
cases,  they  embraced  lands  in  which  minerals  of  gold  and  silver  and 
other  metals  existed.  Yet  in  no  instance,  whether  the  patents  were 
issued  upon  a  sale  or  donation  of  lands,  or  upon  a  confirmation  of  a 
previously  existing  grant,  have  the  United  States  asserted  any  right 
to  the  mines  as  being  reserved  from  the  operation  of  the  patents. 
They  have  uniformly  regarded  the  patent  as  transferring  all  inter- 
ests which  they  could  possess  in  the  soil,  and  everything  imbedded  in 
or  connected  therewith.  Whenever  they  have  claimed  mines,  it  has 
been  as  part  of  the  lands  in  which  they  were  contained,  and  when- 
ever they  have  reserved  the  minerals  from  sale  or  other  disposition, 
it  has  only  been  by  reserving  the  lands  themselves.  It  has  never 
been  the  policy  of  the  United  States  to  possess  interests  in  land  in 
connection  with  individuals. 

Judgment  affirmed.1 

'In  some  of  the  States  the  English  rule  is  followed.  See  Gold  Hill  Quartz 
Mining  Co.  v.  IsA,  5  Oregon,  104  (1873).  In  New  York  the  rights  of  the  State 
to  precious  metals  is  asserted  by  the  Legislature.  N.  Y.  Public  Lands  Law, 
Chap.  317,  1094,  §§  80-85.  —  Ed 


PART   III. 
Of  the  Use  and  Profits  of  Land. 


CHAPTER  I. 
Use  by  the  General  Owner  in  Possession. 
I.  General  restrictions  on  such  use. 

i.  The  Maxim  "sic  utere  tuo  ut  alienum  non  ljbdas." 

BISHOP  v.  BANKS. 

33  Connecticut,  118.  —  1865. 

Petition  for  an  injunction  against  the  keeping  of  a  slaughter- 
house on  lands  of  respondent  near  the  dwelling  of  the  petitioner. 
The  case  was  reserved  for  the  advice  of  this  court. 

Park,  J. — The  respondent  has  successfully  answered  all  the 
claims  of  the  petitioner  for  a  continuance  of  the  injunction,  with 
but  one  exception,  and  that  is,  in  relation  to  the  bleating  of  calves 
kept  upon  the  premises  for  slaughter.  We  think  the  facts  found  by 
the  court  below  upon  this  subject  are  sufficient  to  require  the  inter- 
position of  the  court  to  prevent  its  continuance.  It  is  found  that 
the  annoyance  to  the  petitioner,  proceeding  from  this  cause,  was  so 
great  at  times  as  to  drive  him  and  his  family  from  the  occupancy  of 
that  part  of  his  house  nearest  to  the  premises  of  the  respondent. 
The  court  presents  an  extreme  case  of  the  kind  —  one  that  will  con- 
stitute a  nuisance,  if  a  nuisance  can  be  produced  from  such  cause. 
In  the  cases  of  Whitney  v.  Bartholomew,  21  Conn.  213,  and  of  Brown 
&°  Brothers  v.  Illiiis,  27  Id.  84,  this  court  distinctly  recognize  the 
doctrine  that  a  nuisance  maybe  produced  by  offensive  sounds  in  the 
prosecution  of  business  lawful  per  sc.  The  same  doctrine  is  held  in 
the  case  of  Soltau  v.  De  Held,  9  Eng.  L.  &  Eq.  R.  104,  where  an 
injunction  was  granted  to  restrain  the  ringing  of  church  bells  by  a 
Roman  Catholic  community,  although  they  were  rung  only  upon  the 
Sabbath.  They  were  located  so  near  a  person's  residence  that  his 
p<  a<  e  and  quiet  were  greatly  disturbed.  If  sounds  of  such  a  char- 
a<  ter  and  so  made  can  be  sufficient  to  constitute  a  nuisance,  how 
<.iii  it  be  questioned  in  the  case  under  consideration? 

1 382] 


II.   i.]  SPECIAL   RESTRICTIONS   ON    USE.  383 

It  is  difficult  to  conceive  of  any  noise  more  destructive  to  the 
comfort  and  happiness  of  a  family  than  the  constant  wailing  of  ani- 
mals in  distress  in  the  immediate  vicinity  of  their  residence. 
Enjoyment  under  such  circumstances  would  require  nerves  of  brass 
and  a  heart  of  steel.  But  it  is  unnecessary  to  pursue  this  subject, 
for  reason  and  law  harmonize  in  declaring  that  the  conduct  of  the 
respondent  in  this  particular  is  unlawful  and  wrong.  He  should 
remember  the  maxim  sic  utere  tuo  ut  alienum  non  Icedas,  and  conduct 
accordingly. 

The  remaining  claims  urged  by  the  petitioner  for  a  continuance  of 
the  injunction  are  not  supported  by  the  allegations  of  his  bill  and 
we  do  not  therefore  consider  them. 

We  advise  the  Superior  Court  to  so  modify  the  injunction  that 
the  respondent  may  be  allowed  to  prosecute  his  business,  but  to 
prevent  the  bleating  of  calves  and  the  raising  of  offensive  smells  to 
the  annoyance  of  the  petitioner. 


II.  Special  restrictions  on  such  use  of  land. 

1.  Conditions  and  Limitations   Forbidding    Certain    Uses 
Limiting  to  Particular  Uses. 

PLUMB  v.  TUBBS. 

41  New  York,  442.  —  1869. 

Ejectment  to  recover  the  possession  of  land  on  account  of  the 
breach  of  a  condition  subsequent  contained  in  the  deed  from  plain- 
tiff.    Judgment  for  plaintiff.     Defendant  appeals. 

Hunt,  Ch.  J.  — The  appellant  contends  that  the  condition  in  the 
deed  from  Plumb  is  invalid,  as  being  repugnant  to  the  nature  of  the 
estate  granted.  He  cites  authorities  to  the  effect,  that  a  condition 
annexed  to  a  devise  or  conveyance  in  fee,  that  the  devisee  or  pur- 
chaser, shall  not  alien,  is  void;  that  a  condition  that  the  feoffee 
shall  not  enjoy  the  land  or  take  the  profits,  is  void;  and  others  of  a 
similar  character.  The  cases  cited  have  been  recognized  as  sound 
law  from  a  very  early  period,  and  may  be  conceded  to  be  based 
upon  sound  principles.  Wherever  the  condition  in  a  deed  is  unlaw- 
ful, impossible  or  repugnant  to  the  nature  of  the  estate  granted,  it 
is  not  to  be  enforced.  2  Bl.  Com.  156-7;  Coke  Lit.  206a.,  206b.; 
Bac.  Abr.,  tit.  "  Condition."  This  condition  is  evidently  neither 
unlawful  nor  impossible.  Is  it  repugnant  to  the  estate  gja-frte^L, 
that  its  use  should  be  restricted  by  preventing  thereon,  the  sale  of 


•:• 


- 


384  USE   OF    LAND    BY    GENERAL    OWNER.       [PT.  III.   CH.   I. 

intoxicating  liquors  as  a  beverage?  The  cases  in  the  books  are 
numerous  and  uniform  in  holding  that  the  use  of  the  property  in 
some  directions,  may  be  restricted.  A  condition  that  a  school 
house  should  not  be  erected  on  the  premises,  or  a  distillery,  or  a 
blast  furnace,  or  a  livery  stable,  or  a  machine  shop  for  iron  manu- 
facture, or  a  powder  magazine,  or  a  hospital,  or  a  cemetery,  have 
been  held  to  be  valid  conditions.  Collins  v.Marcy,  25  Conn.  242; 
Craig  v.  Wells,  1  Kernan,  315;  Gray  v.  BlancJiard,  8  Pick.  284; 
Sperry  v.  Pound,  5  Ohio,  189;  Nicoll  v .  Erie  Railway  Co.,  2  Kern. 
121. 

The  case  of  Colt  v.  Towle,  in  the  English  Chancery  Appeals,  so 
late  as  in  June,  1859,  is  like  the  one  before  us.  The  plaintiff  sold  a 
piece  of  land  to  trustees  of  a  land  society,  who  covenanted  that  the 
plaintiff  should  have  the  exclusive  right  of  selling  beer  to  any  public 
house  erected  on  the  land.  The  defendant,  a  member  of  the  soci- 
ety, acquired  a  portion  of  the  land  with  notice  of  the  covenant,  and 
erected  on  it  a  public  house,  which  he  supplied  with  his  own  beer. 
The  plaintiff  filed  his  bill  to  restrain  the  defendant  from  supplying 
beer.  It  was  objected:  1.  That  the  covenant  was  void  for  uncer- 
tainty. 2.  That  there  was  a  want  of  mutuality.  3.  That  the  cove- 
nant was  void  as  being  in  restraint  of  trade.  The  court  held  the 
objections  to  be  insufficient,  and  sustained  the  bill.  Law  Rep.  Eq. 
Series,  part  10,  Oct.,  1869,  Chancery  Appeals. 

It  is  said  that  a  condition,  which  avoids  a  grant  on  account  of  the 
sale  of  a  single  glass  of  beer,  is  unreasonable  and  absurd,  and, 
therefore,  void.  It  is  said  that  a  condition  forbidding  the  keeping 
of  a  hotel  or  a  saloon,  where  liquors  are  regularly  sold,  might  be 
valid,  while  one  depending  upon  the  sale  of  a  single  glass  of  liquor, 
would  be  trifling  and  ridiculous,  and  could  not  be  sustained.  The 
grantor  in  the  present  case,  evidently  belonged  to  that  class  of 
men,  who  consider  the  habitual  use  of  intoxicating  liquors,  as  a  seri- 
ous evil.  He  was  the  owner  of  a  tract  of  land,  which  as  I  infer  from 
the  case,  he  purposed  to  have  formed  into  a  town  or  village,  by  the 
sale  of  lots  to  individuals  who  should  build  upon  them.  This  would 
give  to  his  property  remaining  unsold,  the  advantage  of  the 
enhanced  price,  resulting  from  such  improvement.  The  increase  of 
inhabitants  would  give  to  himself  and  family  the  benefits  of  refined 
SO<  iety.  It  was  his  opinion,  as  we  may  infer  from  his  restrictive 
.  cyances,  that  intemperance  was  a  social  evil,  from  which  he 
desired  to  protect  himself  and  his  family.  We  may  infer,  in  the 
-.uii'  manner,  that  he  considered  his  remaining  property,  as  more 
valuable  if  located  in  a  community  where  no  liquor  was  sold  as  a 
beverage,    than    where    its    use   was    permitted.     These   views   and 


II.  i.]  SPECIAL    RESTRICTIONS   ON    USE.  385 

wishes  cannot  be  pronounced  unreasonable  and  absurd.  The 
grantor  had  a  right  to  hold  them,  and  he  had  a  right  to  use  his 
property  in  a  manner  that  would  accomplish  them. 

Few  men  would  object  to  the  sale  of  a  single  glass  of  liquor  as  a 
beverage,  if  that  were  the  end  of  it.  The  argument  is  made  by  the 
grantor,  that  one  sale  or  one  glass  leads  to  another,  and  that  the 
only  way  to  prevent  excess,  is  entirely  to  prevent  its  use.  He 
argues  that  there  is  no  limit,  which  can  be  placed  upon  its  sale  or 
use  which  will  permit  its  moderate  use,  and  which  will  insure  that 
such  use  shall  not  become  immoderate.  To  accomplish,  therefore, 
his  purpose  of  preventing  intemperance,  which  he  fears  may  reach 
his  own  family;  which  he  apprehends  may  increase  taxation;  which 
he  thinks  will  depreciate  the  value  of  his  remaining  property,  he 
determines  to  adopt  a  method,  which  must  certainly  be  effectual. 
He  imposes  a  condition,  that  no  intoxicating  liquor  in  whatever 
form,  or  to  whatever  extent,  shall  be  sold  upon  the  premises 
granted.  If  faithfully  observed,  this  condition  would  certainly 
produce  the  result  desired  by  the  grantor.  Whether  this  plan  is  wise 
or  unwise,  is  not  for  us  to  say.  No  man  is  bound  by  law  to  be 
wise.  He  has  a  legal  right  to  be  wise  or  otherwise,  in  his  own  judg- 
ment or  as  his  own  caprice  may  determine.  It  is  enough  here  to 
say  that  neither  the  purpose  of  the  grantor  nor  his  mode  of  accom- 
plishing it  can  be  pronounced  unreasonable  or  absurd. 

The  question  has  also  been  recently  considered  in  this  court,  and 
we  need  not  go  beyond  that  case  to  ascertain  how  the  present  ques- 
tion should  be  decided.  Gilbert  v.  Peteler,  38  N.  Y.  R.  165.  In 
that  case  John  C.  Green  paid  the  consideration  money  to  one  Davis, 
for  the  purchase  of  certain  premises,  which,  at  his  request,  were 
conveyed  to  one  Bartlett,  Green  also  owning  other  premises  near 
by.  Bartlett  and  wife"  afterward  conveyed  to  Samuel  M.  Fox,  the 
latter  covenanting  not  to  erect,  or  suffer  to  be  erected,  any  building 
or  structure,  whereby  the  view  or  prospect  of  the  bay  from  any  part 
of  the  dwelling-house  of  Green,  should  be  obstructed  or  impaired. 
In  case  of  breach,  the  premises  were  to  be  forfeited  to  Green,  his 
heirs  or  assigns.  After  several  intermediate  conveyances,  the  title 
passed  to  the  plaintiff,  who  contracted  to  sell  and  convey  them  to 
the  defendant,  the  latter  being  required  immediately  to  expend 
$20,000  on  improvements.  The  defendant  expended  $23,831  in 
improvements  upon  the  premises,  then  refused  to  complete  his  pur- 
chase, and  rescinded  and  demanded  compensation  for  his  improve- 
ments, on  the  ground  that  the  plaintiff  could  not  convey  a  good 
title  by  reason  of  the  covenant  or  condition  aforesaid.  This  court 
held:     1st.   That  upon  the  facts  above  stated,  the  obligation  not  to 

LAW  OF   PROP.   IX  LAND  —  25 


386  USE   OF   LAND   BY    GENERAL   OWNER.       [PT.  III.  CH.   I. 

obstruct  Green's  view,  was  a  condition  subsequent.  2d.  That  it 
was  valid.  3d.  That  it  afforded  a  sufficient  ground  for  refusing  to 
accept  the  title.  It  was  accordingly  decreed  that  the  contract  be 
rescinded,  and  that  the  defendant  recover  the  value  of  the  improve- 
ments made  by  him. 

This  case  is  decisive  of  the  principal  question  before  us. 

The  appellant  contends  also,  that  he  is  relieved  from  this  condi- 
tion by  the  conveyance  of  the  other  lot  from  Butterfield  to  Ferris, 
on  the  13th  of  October,  1854,  without  restriction.  By  the  original 
deed,  the  grantee  was  to  be  relieved  from  the  condition,  if  the 
grantor,  his  heirs  or  assigns,  "  should  sell  other  land  without  a 
similar  restriction,  or  manufacture  or  sell  such  liquor,  to  be  used  as  a 
beverage,  at  the  said  village,  or  permit  the  same  to  be  done  on  any 
other  land  now  owned  by  the  said  Joseph  Plumb,  at  the  said 
village." 

This  argument  assumes,  that  by  the  conveyance  from  Butterfield 
to  Ferris  without  restriction,  the  latter  held  the  land  freed  from  the 
condition.  This  is  an  error,  the  title  passed  from  Plumb  only  sub- 
ject to  this  condition.  His  deed  was  recorded,  and  the  record  was 
notice  of  its  contents  (if  any  was  needed),  to  every  subsequent  pur- 
chaser. Whatever  was  contained  in  Ferris'  deed  or  whatever  was 
omitted  therefrom,  if  he  violated  the  condition  in  the  original  deed 
from  Plumb,  his  title  was  forfeited,  and  Plumb  could  re-enter. 
Gilbert  v.  Peteler,  supra.  This  was  exactly  what  was  intended  to  be 
secured  to  the  appellant  in  his  deed.  He  covenanted  not  to  sell 
intoxicating  liquors  as  a  beverage,  but  he  did  not  intend  to  be  thus 
restricted  if  Plumb  allowed  others  to  sell.  If  all  were  thus 
restricted,  he  was  bound.  The  release  was  to  result  if  lands  were 
sold  to  a  purchaser,  who  should  by  such  purchase  obtain  the  right 
to  sell  liquors  on  the  premises.  Whether  the  restrictions  were  con- 
tained in  the  last  deed,  is  not  so  much  the  point,  or  whether  the  last 
purchaser  was  restricted.  Ferris  is  thus  restricted,  and  the  appel- 
lant is  not  relieved  from  the  condition  of  the  deed.  Neither  do  I 
think  it  certain  that  Butterfield  is  to  be  deemed  an  assignee  of 
Plumb,  within  the  meaning  of  the  terms  of  this  condition.  The 
intention  was  to  give  this  effect  to  the  acts  of  Plumb  or  his  heirs. 
See  Tankcrville  v.  IVi/igficId,  6  Eng.  Com.  Law  R.  246. 

There  is  no  merit  in  the  last  objection,  that  Ferris  sold  one  glass  of 
ale  to  a  third  party  in  the  presence  of  the  plaintiff.  If  it  had  been 
stated  that  he  had  sold  it  with  his  assent,  the  case  would  have  been 
different.  In  some  circumstances  the  bodily  presence  of  the  plain- 
tiff might  be  evidence  of  an  assent  to  the  sale.  In  others,  it  would 
have  no  such  effect.     At  the  most,  it  was  evidence  from  which  the 


II.  2.]  SPECIAL    RESTRICTIONS   ON    USE.  387 

jury  could  have  inferred  an  assent.  If  the  defendant  had  desired  to 
give  it  such  effect,  he  should  have  submitted  it  to  the  jury  for  their 
decision. 

It  has  been  repeatedly  held  in  this  court,  and  in  quite  recent 
cases,  that  no  proof  of  an  actual  entry  or  demand  of  possession, 
before  commencing  the  action,  was  necessary.  Cruger  v. 
McLawry,  ante,  p.    219;  Hosfordw.  Ballard,  39  N.  Y.  147. 

Judgment  should  be  affirmed,  with  costs. 


FIRST  UNIVERSALIST  SOCIETY  v.  BOLAND. 

155  Massachusetts,  171.  —  1892. 
\_Reported  herein  at  p.  525.  ]* 


2.  Restrictive  Covenants. 
BLAKEMORE  v.  STANLEY. 

159  Massachusetts,  6.  —  1893. 

Bill  in  equity  to  enforce  restrictions  contained  in  a  deed  of  real 
estate.     Case  reserved  for  the  determination  of  this  Court. 

Lathrop,  J. — No  question  is  made  as  to  the  validity  of  the 
restrictions  in  the  present  case,  and  the  only  question  is  as  to  their 
interpretation.  The  language  is,  "  that  for  ten  years  from  January 
1,  1891,  no  buildings  shall  be  erected  other  than  dwellings,  with 
necessary  outbuildings,  said  dwellings  to  cost  not  less  than  $2,000 
each,  and  all  of  said  buildings  to  be  not  less  than  twenty  feet  from 
the  street  line." 

Although  it  is  not  stated  in  the  report  what  the  cost  of  the  tent 
was,  yet,  as  the  bill  alleges  that  its  cost  was  less  than  $2,000,  and 
the  answer  does  not  deny  this,  we  assume  that  no  question  was 
made  on  this  point.  Is,  then,  a  tent  such  as  is  described  in  the 
report  and  used  in  the  manner  therein  set  forth  a  building?  The 
ordinary  meaning  of  this  word,  it  is  said  by  Mr.  Justice  Morton,  in 
Nowell  v.  Boston  Academy  of  Notre  Dame,  130  Mass.  209,  is  "  a  struc- 
ture or  edifice  enclosing  a  space  within  its  walls  and  usually  covered 
with  a  roof."  The  tent  in  question  was  used  by  the  defendants  to 
live  in  with  their  families,  although  they  did  not  sleep  in  it.  It  was 
fitted  up  with  a  stove  for  cooking,  and  with  other  furniture.     While 

1  See  also  Congregational  Society  v.  Stark,  infra,  p.  509.  — Ed. 


388  USE    OF   LAND    BY    GENERAL   OWNER.       [PT.  III.  CH.  I. 

the  defendants  lived  in  their  own  house  in  another  town  in  the  win- 
ter, the  fair  construction  of  the  report  is  that  the  tent  was  used  as  a 
dwelling  at  other  times  of  the  year  during  the  daytime.  Although 
the  report  finds  that  the  tent  was  placed  temporarily  on  the  lots,  it 
is  also  found  that  there  is  no  intention  of  erecting  a  dwelling-house 
soon.  On  these  findings,  a  majority  of  the  court  are  of  opinion  that 
the  tent  was  a  violation  of  the  terms  of  the  restriction. 

The  remaining  question  is  as  to  the  stable.  That  a  stable  may  be 
a  necessary  outbuilding  may  be  assumed.  But  an  outbuilding  is 
something  which  is  to  be  used  in  connection  with  a  main  building. 
Commonwealth  v.  Intoxicating  Liquors,  140  Mass.  287,  289.  And  as 
there' was  no  main  building  of  the  kind  called  for  by  the  terms  of 
the  deed,  we  are  of  opinion  that  the  stable  in  this  case  cannot  be 
deemed  to  be  a  necessary  outbuilding. 

It  follows  that  the  plaintiff  is  entitled  to  a  decree  directing  the 
removal  of  the  tent  and  stable,  and  restraining  the  defendants  from 
using  the  lots  in  the  manner  in  which  they  have  been  using  them. 

Decree  accordingly. 


ROWLAND  v.  MILLER. 
139  New  York,  93.  —  1893. 


Earl,  J.  — The  main  contention  of  the  parties  is  over  the  mean- 
ing and  force  of  the  restriction  agreement.  The  claim  of  the  appel- 
lant that  it  simply  restrains  nuisances  cannot  be  sustained,  and 
hence  the  numerous  authorities  cited  by  his  counsel  on  the  argu- 
ment before  us,  have  little  or  no  application.  If  the  agreement  was 
intended  simply  to  restrain  any  trade  or  business  which  was/cr  se  a 
nuisance,  or  which  was  carried  on  in  such  a  way  as  to  make  it  a 
nuisance,  then  it  was  wholly  unnecessary.  The  law  will  always, 
upon  the  application  of  a  party  aggrieved,  restrain  and  abate  a  pri- 
vate nuisance.  This  case  is  not  governed  by  the  general  law  as  to 
nuisances,  but  by  the  force  and  effect  of  the  covenants  contained  in 
the  agreement.1 

When  the  agreement  was  made,  the  parties  thereto,  desiring  to 
improve,  protect  and  benefit  their  lots,  and  consulting  their  respect- 
ive interests,  absolutely  prohibited  the  carrying  on  of  certain  kinds 
ot  business  specified  upon  the  lots.  They  determined  for  them- 
selves  thai  those  kinds  of  business  were  undesirable  in  the  vicinity 
of  resident  es,  and  <  ovenantS  restraining  them  can  be  enforced  with- 

1  Plaintifl  and  def<  ndanl  a<  quired  title  to  their  respective  lots  from  the  same 
•  our<  e  and  undei  i  imilar  restrii  live  <  ovenants.  —  Ed. 


II.  2.]  SPECIAL    RESTRICTIONS    ON    USE.  389 

out  any  proof  whatever  that  they  are  "injurious  or  offensive." 
A  person  owning  a  body  of  land  and  selling  a  portion  thereof,  may, 
for  the  benefit  of  his  remaining  land,  impose  any  restrictions,  not 
against  public  policy,  upon  the  land  granted  he  sees  fit,  and  a  court 
of  equity  will  generally  enforce  them.  Trustees  of  Columbia  College 
v.  Lynch,  70  N.  Y.  440;  Same  v.  Thacher,  87  Id.  311;  Hodge  v. 
Sloan,  107  Id.  244.  (^ 

The  business  carried  on  by  the  Taylor  Company  is  not  among  those 
kinds  particularly  specified  in  the  agreement.1  But  the  claim  of  the 
plaintiff  is  that  it  is  prohibited  by  the  general  clause  in  the  agree- 
ment as  "  injurious  or  offensive  to  the  neighboring  inhabitants." 
This  clause  enlarges  the  scope  of  the  agreement.  It  is  a  too  nar- 
row construction  to  hold  that  it  prohibits  only  trades  or  kinds  of 
business  which  are  nuisances/^;-  se,  for  reasons  already  given,  and 
for  the  further  reason  that  nearly,  if  not  quite,  all  the  trades  and 
business  specially  named  are  not  such  nuisances.  Any  kind  of  busi- 
ness may  become  a  nuisance  by  the  manner  in  which  it  is  carried  on, 
or  from  its  location,  and  a  business  may  be  offensive  to  neighbor- 
ing inhabitants  and  yet  fall  far  short  of  being  a  legal  nuisance, 
which  a  court  of  equity  will  abate  as  such. 

This  clause  in  the  agreement  must  have  a  reasonable  construction. 
We  cannot  suppose  that  the  parties  had  in  mind  any  business  which 
might  be  offensive  to  a  person  of  a  supersensitive  organization,  or  to 
one  of  a  peculiar  and  abnormal  temperament,  or  to  the  small  class 
of  persons  who  are  generally  annoyed  by  sights,  sounds  and  objects 
not  offensive  to  other  people.  They  undoubtedly  had  in  mind  ordi- 
nary, normal  people,  and  meant  to  prohibit  trades  and  business 
which  would  be  offensive  to  people  generally,  and  would  thus  ren- 
der the  neighborhood  to  such  people  undesirable  as  a  place  of 
residence. 

It  cannot  be  doubted  that  the  business  of  the  Taylor  Company 
was,  within  this  definition,  offensive  to  the  neighboring  residents. 
People  of  ordinary  sensibilities  would  not  willingly  live  next  to  a  lot 
upon  which  such  a  business  is  carried  on.  An  ordinary  person 
desiring  to  rent  such  a  house  as  plaintiff's  would  not  take  her  house 
if  he  could  get  one  just  like  it  at  the  same  rent  at  some  other  suit- 
able and  convenient  place.  Indeed,  her  house  would  be  shunned  by 
people  generally  who  could  afford  to  live  in  such  an  expensive  house. 

The  court  can  take  judicial  notice  of  the  offensive  character  of 
such  a  business.  Judges  must  be  supposed  to  be  acquainted  with 
the   ordinary   sentiments,    feelings   and   sensibilities   of   the    people 

'The  Taylor  Company  was  engaged  in  the  business  of  embalming  and 
undertaking. — Ed. 


390  USE   OF   LAND    BY    GENERAL   OWNER.      [PT.   III.   CII.   I. 

among  whom  they  live,  and  hence  in  this  case  the  learned  judge, 
after  the  character  of  the  business  carried  on  by  the  Taylor  Com- 
pany had  been  proved,  could  have  found,  as  matter  of  law,  that  it 
was  in  violation  of  the  restriction  agreement,  without  any  further 
proof.  It  was,  therefore,  unnecessary  for  the  plaintiff  upon  the  trial 
to  call  witnesses  from  the  neighborhood  to  give  their  opinions  that 
this  business  was  injurious  and  offensive.  Even  if  such  opinions 
were  erroneously  received,  they  were  unnecessary  and  harmless,  as 
upon  the  undisputed  evidence  as  to  the  character  of  the  business 
carried  on  the  legal  conclusion  of  the  trial  judge  must  have  been 
the  same. 

But  it  is  contended  that  the  restriction  agreement  ought  not  in 
this  case  to  be  enforced,  because  most  of  the  lots  in  the  block 
between  42d  and  43d  streets  and  Madison  avenue  and  Vanderbilt 
avenue  are  no  longer  occupied  for  residences,  and  are  devoted  to 
business  purposes,  and  the  counsel  for  the  appellant  cites  as  an 
authority  on  this  point  our  decision  in  the  case  of  The  Trustees  of 
Columbia  College  v.  Thacher.  The  principles  of  that  case  are  not 
applicable  to  the  facts  of  this.  There  it  appeared  that  the  contract 
which  the  plaintiff  sought  to  enforce  was  no  longer  of  any  value  to 
it,  and  that  its  enforcement  would  result  in  great  damage  to  the 
defendant,  without  any  benefit  to  anyone.  Here  the  plaintiff  has 
the  right  to  occupy  her  house  as  a  residence,  and  in  such  occupation 
to  have  the  protection  of  the  restriction  agreement.  She  has  never 
violated  the  agreement  herself,  or  consented  to  or  authorized  or 
encouraged  its  violation  by  others.  In  order  to  have  the  benefit  of 
the  agreement,  she  is  not  obliged  to  sue  all  its  violators  at  once. 
She  may  proceed  against  them  seriatim  or  she  may  take  no  notice  of 
the  violations  of  the  agreement  by  business  carried  on  remotely  from 
her  residence,  and  enforce  it  against  a  business  specially  offensive 
to  her  by  its  proximity.  This  is  not  a  case  where  the  defendants  can 
ask  for  immunity  in  an  equitable  form,  because  others  are  in  greater 
or  less  degree  also  violators  of  the  agreement.  The  plaintiff  has 
done  nothing  and  omitted  nothing  which  should  authorize  the  occu- 
pant of  an  adjoining  lot,  in  violation  of  the  agreement,  to  make  her 
residence  uncomfortable  and  undesirable.  Generally,  whether  an 
equity  court  will  refuse  to  restrain  the  violation  of  such  an  agree- 
ment, and  leave  the  parties  to  their  legal  remedies  on  account  of  the 
<  hanged  conditions  affecting  the  premises  to  which  the  agreement 
relates,  rests  in  the  discretion  of  that  court,  and  such  discretion  will 
not  be  reviewed  upon  appeal  here.  The  question  to  be  determined 
in  the  exercise  of  such  discretion  depends  largely  upon  the  facts, 
and  mainly  whether  the  enforcement  of  the  agreement  would  greatly 


II.  3-]  SPECIAL   RESTRICTION   ON    USE.  39I 

harm  the  defendant  without  any  substantial  benefit  to  the  plaintiff, 
so  as  to  make  the  enforcement  inequitable,  we  cannot  say,  reviewing 
all  the  evidence  in  this  case,  that  it  would  be  inequitable  for  the 
plaintiff  to  enforce  the  agreement. 

The  appellant  claims  that  the  judgment  is  too  broad  in  its 
restraints.  But  we  think  all  his  rights  are  fully  protected  by  the 
sixth  clause  of  the  judgment,  and  the  subsequent  action  of  the 
court  under  that  clause  upon  the  application  of  the  Taylor  Company. 

The  matters  to  which  we  have  thus  given  attention  cover  the 
whole  ground  of  the  appeal,  and  our  conclusion  is,  that  the  judg- 
ment must  be  affirmed,  with  costs. 

Judgment  affirmed. 


3.  Restriction    as    to    Equitable    Waste    When   There  is  an 
Executory  Devise  Over. 

TURNER  v.  WRIGHT. 

2  De  Gex,  Fisher  and  Jones  (Eng.  Ch.),  234.  —  i860. 

The  Lord  Chancellor.  —  In  this  case  the  plaintiff  by  his  bill, 
prayed  an  injunction  "  to  restrain  the  cutting  of  any  timber,  or  at 
any  rate  of  any  ornamental  timber,"  growing  upon  the  lands  devised 
in  fee  to  the  defendant,  subject  to  an  executory  devise  over  to  the 
plaintiff. 

The  decree  of  the  vice-chancellor  declared,  "  that  the  defendant 
is  entitled  to  fell  all  such  timber  on  the  devised  estates  as  is  mature 
and  fit  to  be  cut,  except  such  as  has  been  planted  or  left  standing 
by  way  of  ornament  or  shelter  with  reference  to  the  occupation  of 
the  mansion-house  on  the  said  devised  estates;  but  that  he  is  not 
entitled  to  fell  any  unripe  timber  or  any  timber  planted  or  left  stand- 
ing for  ornament  or  shelter  as  aforesaid." 

The  result  of  the  decision  is,  that  the  defendant  is  dispunishable 
of  legal,  but  not  of  equitable,  waste.  After  great  consideration,  I 
agree  with  the  vice-chancellor  on  both  questions. 

As  to  the  first,  my  opinion  is  clear  and  decided.  The  defendant 
is  tenant  in  fee  simple,  with  all  the  incidents  of  such  an  estate, 
although  there  be  executory  devises  over  in  case  he  should  die 
without  leaving  issue  living  at  the  time  of  his  decease.  Not  mak- 
ing any  unconscientious  use  of  the  powers  belonging  to  him  as  ten- 
ant in  fee  simple,  why  should  he  not  reasonably  exercise  these 
powers?  Is  there  anything  unconscientious  or  unreasonable  in  his 
cutting  down  timber  mature  and  fit  to  be  cut,  and  not  such  as  has 


392  USE    OF    LAND    BY    GENERAL   OWNER.      [PT.  III.   CH.   I. 

been  planted  or  left  standing  by  way  of  ornament  or  shelter?  If  we 
are  to  regard  the  intention  of  the  testator  in  such  limitations,  can 
the  intention  be  supposed  to  be,  that  the  first  taker,  who  is  made 
tenant  in  fee,  should  during  the  whole  of  his  life,  although  he  should 
have  numerous  children  and  grandchildren,  not  be  entitled  to  cut 
down  a  tree  upon  the  property,  unless  for  his  botes?  In  this  case, 
the  presumed  intention  of  the  testator  is  strengthened  by  the  first 
executory  devise  over,  which  is  for  life  and  sans  waste.  He  could 
not  have  intended  that  the  first  taker,  to  whom  he  gave  a  fee,  should 
be  more  restricted  in  the  management  of  the  property  than  the 
devisee  over,  to  whom  he  gave  only  a  life  estate.  Having  given  the 
first  taker  a  fee,  he  probably  thought  it  quite  unnecessary  expressly 
to  make  him  dispunishable  of  waste. 

So  that  equitable  waste  is  not  committed,  the  bountiful  intention 
of  the  testator  in  favor  of  the  devisees  over  will  be  completely 
fulfilled;  for,  on  the  happening  of  the  contingencies  limited,  the 
property  will  come  to  them  in  the  same  condition  in  which  it  would 
have  been  if  the  testator,  being  a  prudent  man,  had  himself  sur- 
vived and  had  managed  and  enjoyed  it  till  the  time  when  the  events 
happen  upon  which  they  are  entitled  to  enter. 

The  onus  seems  to  lie  upon  the  plaintiff  to  show,  by  authority, 
that  tenant  in  fee  simple,  subject  to  an  executory  devise  over,  is  not 
entitled  to  cut  timber.  It  is  admitted  that  no  express  decision  to 
this  effect  is  to  be  found  in  the  books,  and  that  no  instance  has  ever 
yet  occurred  of  an  adult  devisee  in  fee  with  an  executory  devise 
over  being  restrained. 

The  plaintiff's  counsel  relied  on  dicta  to  be  found  in  the  reports  of 
three  cases,  Robinson  v.  Litton,  3  Atk.  209,  Cru.  Dig.,  tit.  xvi.,  c.  7, 
§  26;  Stansfields.  Habergham,  10  Ves.  273,  and  Wright  v.  Atkyns,  17 
Ves.  255;  19  Ves.  299;  1  Ves.  &  Bea.  313;  Turn.  &  Russ.  143. 
According  to  Vesey,  Jr.,  a  very  careful  and  accurate  reporter,  Lord 
Eldon  did  say,  in  Stansfield  v.  Ha berg ham,  10  Ves.  273,  "  I  should 
by  dissolving  this  injunction  contradict  what  has  been  understood 
to  be  the  doctrine  of  this  court;  that,  where  there  is  an  executory 
devise  over,  even  of  a  legal  estate,  this  court  will  not  permit  the 
timber  to  be  cut  down."  But  this  doctrine  is  not  to  be  found  in 
any  text-writer,  and  it  has  never  been  acted  upon.  In  Wright  v. 
Atkyns,  17  Ves.  255;  19  Ves.  299;  1  Ves.  c\:  Bea.  313;  Turn.  &  Russ. 
1  t  5,  the  power  of  the  widow  to  cut  down  timber  was  only  questioned 
upon  the  supposition  that  she  took  no  more  in  equity  than  an  estate 
for  life.  In  Robinson  v.  Litton,  3  Atk.  209;  Cru.  Dig.,  tit.  xvi.,  c.  7, 
8  26,  Lord  Hardwicke  was  influenced  by  the  consideration  that  the 
tenant  in  fee  simple  with  an  executory  devise  over  was  the  infant 


II.  3-]  SPECIAL    RESTRICTIONS   ON    USE.  393 

heir  of  the  testator,  and  was  about  to  cut  down  timber  improvi- 
dently.  The  limitation  was  as  stated  by  Cruise,  6  Cruise,  428,  429, 
and  the  infant,  though  seized  of  the  legal  estate  in  fee,  was  entitled 
to  the  rents  and  profits  only  until  he  attained  twenty-one,  i.  e.,  for 
a  chattel  interest.  After  that  he  was  to  become  trustee  for  his  sis- 
ters; and,  even  according  to  the  report  in  Atkyns,  the  circumstances 
of  the  infant  being  a  trustee  for  the  benefit  of  his  sisters  was  mainly 
relied  upon  in  granting  the  injunction.     3  Atk.  209. 

Therefore,  as  to  legal  waste,  I  think  there  is  no  authority  to  out- 
weigh the  considerations  which,  upon  principle,  lead  strongly  to  the 
conclusion  that,  so  far,  the  injunction  ought  to  be  dissolved. 

Had  there  been  a  charge  in  the  bill,  supported  by  evidence,  that 
the  cutting  down  of  the  ornamental  and  immature  timber  was  mali- 
cious, I  should  have  entertained  no  doubt  that  this  court  ought  to 
interfere  by  injunction.  Tenant  in  fee  simple,  subject  to  an  execu- 
tory devise  over,  of  a  mansion  surrounded  by  timber  for  shelter  and 
ornament,  cannot  say  that  the  property  is  his  own;  so  that  out  of 
spite  to  the  devisee  over,  he  may  blow  up  the  mansion  with  gun- 
powder and  make  a  bonfire  of  all  the  timber.  The  famous  Raby 
Castle  Case,  Vane  v.  Lord  Barnard^  2  Vern.  738,  shows  that  such 
things  may  not  be  done  by  tenant  for  life  sans  waste,  and  tenant  in 
fee  with  an  executory  devise  over,  actuated  by  malice,  would  not 
have  greater  liberty  to^destroy. 

The  waste  which  intervenes  between  what  is  denominated  legal 
waste  and  what  is  denominated  malicious  waste,  viz.,  equitable 
waste,  may  admit  of  a  different  consideration.  But  equitable  waste 
is  that  which  a  prudent  man  would  not  do  in  the  management  of  his 
own  property.  This  court  may  interfere  where  a  man  unconscien- 
tiously  exercises  a  legal  right  to  the  prejudice  of  another;  and 
an  act  may  in  some  sense  be  regarded  as  unconscientious  if  it  be 
contrary  to  the  dictates  of  prudence  and  reason,  although  the  actor, 
from  his  peculiar  frame  of  mind,  does  the  act  without  any  malicious 
motive.  The  prevention  of  acts  amounting  to  equitable  waste  may 
well  be  considered  as  in  furtherance  of  the  intention  of  the  testator, 
who,  no  doubt,  wished  that  the  property  should  come  to  the  devisee 
over  in  the  condition  in  which  he,  the  testator,  left  it  at  his  death; 
the  first  taker  having  had  the  reasonable  enjoyment  of  it,  and  hav- 
ing managed  it  as  a  man  of  ordinary  prudence  would  manage  such 
property  were  it  absolutely  his  own.  In  the  present  case,  the 
devise  being  by  the  testator  of  "  all  his  said  mansion-house  and 
estate  at  Brattleby  and  North  Kelsey,  with  the  appurtenances," 
there  would  be  great  difficulty  in  distinguishing  for  this  purpose 
between  the  mansion-house   and   the  ornamental  timber.     Indeed, 


394  USE   OF    LAND    BY    GENERAL   OWNER.       [PT.   III.   GIL  I. 

Mr.  Daniel  contended  that,  in  the  absence  of  malice,  this  court  could 
not  interfere  to  protect  the  mansion-house.      I  put  to  him  hypotheti- 
cally,  in   the   course   of   his  able   argument,  the   supposition   that  a 
mediaeval   castle   is   devised   to  A.  in   fee,  subject  to  an   executory 
devise  over  to  B.  in  fee,  and  that  A.  from  a  sincere  dislike  of  tur 
rets  and  moats,  and  a  genuine   love  of  roses  and  lilies  and  gravel 
walks,  and  believing  that  B.  and  all  other  sensible  men  must  have 
the  same  taste,  declares  that  he  means  to  throw  down  all  the  build- 
ings and  to  convert  the  site  of  the  castle  into  a  flower  garden,  and 
begins  with  setting  men  to  strip  the  lead  from  the  roof  of  the  don- 
jon tower.     A  bill  being   filed   by  B.  for  an   injunction,  would  this 
court  interfere?     Mr.  Daniel  answered:    "A.,  acting  bona  fide,  No." 
Nevertheless  I  cannot  help  thinking  that  in  spite  of  A,'s  bona  fides, 
what  A.  contemplated  would  be  in  the  nature  of  a  destruction  of  the 
subject  devised,  and   would  certainly  be   in   contravention   of  the 
intention  of  the  devisor,  so  that  B.  would  be  entitled  to  an  injunc- 
tion.    It  may  be  said  that  this  is  an  extreme  case,  but  it  is  by  an 
extreme  case  that  the  soundness  of  a  principle  is  to  be  tested.     The 
presence   or  absence   of  a  bad  motive  will   not   alone   enable  us  to 
draw  any  satisfactory  line  between  what  is  to  be  considered    mali- 
cious and  what  is  to  be  considered  equitable  waste,  and   no  line  to 
regulate  the  interposition  of  a  court  of  equity  by  injunction  can  well 
be    drawn    other    than    the    recognized    and    well-established    line 
between  legal  and  equitable  waste.     The  application  of  this  to  the 
facts  of  particular  cases  may  sometimes  be  attended  with  difficulty; 
but   the   principle   on   which   the  line   is  to  be  traced  is   known  and 
invariable.      I    am   willing,    with  Vice-Chancellor    Page   Wood,    to 
accept  the   clew  by  which   Lord  Justice   Turner,  in  Micklethwait  v. 
Micklethwait,  i    De   G.  &   J.  504,  524,  proposed   to  solve  the  diffi- 
culty:    "  If  a  devisor  or  settlor  occupies  a  mansion-house,  with 
trees  planted  or  left  standing  for  ornament  around  or  about  it,  or 
keeps  such  a  mansion-house  in  a  state  for  occupation,  and  devises 
or  settles  it  so  as  to  go  in  a  course  of  succession,  he  may  reasonably 
be  presumed  to  anticipate  that  those  who  are  to  succeed  him  will 
occupy  the   mansion-house;    and   it   cannot  be   presumed    that    he 
meant  it   to  be   denuded   of   that   ornament  which   he   has  himself 
enjoyed."     However,  I  cannot  go  so  far  as  the  vice-chancellor,  who 
is  reported  to  have  added:     "This  reasoning  obviously  applies  to 
every  case   of   an   estate   limited   so  as  to  go  in  a  course  of  succes- 
sion."     "  The  tenant  for  life,  sans  waste,  is  as  much  owner  of  the 
timber  as  the  tenant   in  fee.      Their  legal   rights   in    this  respect  are 
identical."      Turner  v.  Wright,  John.  740-751.     Where  an  estate  tail 
is   <  reated    with   successive    estates   tail    in    remainder,    the    estate 


II.   3]  SPECIAL    RESTRICTIONS    ON    USE.  395 

entailed  is  ''  limited  to  go  in  a  course  of  succession,"  but  a  tenant  in 
tail  is  dispunishable  of  equitable  as  well  as  legal  waste,  because  he 
may  at  any  time  bar  the  entail,  and  give  himself  a  pure  and  abso- 
lute fee  simple.  Again,  a  tenant  for  life  sans  waste  can  hardly  be 
said  to  be  as  much  owner  of  the  timber  as  the  tenant  in  fee;  for 
although  the  tenant  for  life  (avoiding  equitable  waste),  may  fell  and 
dispose  of  the  timber  in  his  lifetime,  were  he  to  sell  growing  trees 
they  would  go  to  the  remainderman  or  reversioner,  if  not  severed 
from  the  soil  in  his  lifetime;  whereas,  the  tenant  in  fee  might  by 
sale  or  conveyance  give  the  purchaser  an  absolute  and  permanent 
interest  in  the  trees  against  all  the  world.  Nevertheless  I  think 
that  the  rights  and  liabilities  of  tenant  for  life  sans  waste  may  be 
taken  as  a  measure  of  the  rights  and  liabilities  of  devisee  in  fee, 
subject  to  an  executory  devise  over. 

The  only  analogy  at  all  unfavorable  to  this  view  of  the  case  is 
that  of  tenant  in  tail,  with  the  reversion  in  the  crown,  and  tenant  in 
tail  under  an  act  of  Parliament  which  precludes  the  barring  of  the 
entail.  Such  tenants  in  tail  are  considered  dispunishable  of  waste; 
this  being  an  incident  of  tenancy  in  tail,  probably  arising  from  the 
power  which  generally  subsists  of  barring  the  entail,  and  it  not  hav- 
ing been  thought  fit  to  make  an  exception  in  respect  of  those  rare 
cases  in  which  the  power  of  barring  the  entail  is  withheld.  But  in 
the  Marlborough  Case,  3  Madd.  498,  although  the  court  would  not 
interfere  on  the  mere  ground  that  the  tenant  in  tail  was  prohibited 
by  statute  from  barring  the  entail;  yet,  having  regard  to  the  enact- 
ment "  that  Blenheim  House  should  in  all  times  descend  and  be 
enjoyed  with  the  honors  and  dignities  of  the  family."  It  was  held 
that  the  court  ought  to  interfere  not  only  to  prevent  the  destruction 
of  the  house,  but  also  to  protect  the  timber  essential  to  the  shelter 
and  ornament  of  the  house.     3  Madd.  549. 

There  is  an  analogy  which  entirely  accords  with  the  distinction 
made  by  the  vice-chancellor  in  this  decree  between  legal  and  equi- 
table waste,  viz.,  the  case  of  "  tenant  in  tail  after  possibility  of 
issue  extinct,"  who  is  dispunishable  of  legal  waste  in  respect  of  the 
estate  of  inheritance  which  was  once  in  him,  but  may  be  restrained 
by  injunction  from  committing  equitable  waste,  this  being  an  abuse 
of  his  legal  power. 

For  these  reasons  I  think  that  the  decree  of  the  vice-chancellor, 
as  he  pronounced  it,  should  in  all  respects  be  affirmed,  and  that  the 
appeal  must  be  dismissed  with  costs.1 

1  In  Matthews  v.  Hudson,  81  Ga.  120  (1888)  it  was  held  that  Hudson  took  a  fee, 
determinable  upon  his  dying  without  a  child  or  children,  and  the  other  children 
of  the  testatrix   were   intended  to   take   by  executory  devise  in  that  event.     It 


39^  USE   OF    LAND    BY    GENERAL   OWNER.       [PT-   IIL   CIL   L 

4.  Other  Cases  in  Which  General  Owner  May  Be  Responsible 

as  for  Waste. 

McKinstry,  J.,  in  McCORD  v.  OAKLAND  QUICKSILVER 
MINING  COMPANY. 

64  California,  134.  —  1883. 

The  material  questions  presented  are: 

Does  the  excavation  and  removal  of  cinnabar  from  a  quicksilver 
mine,  or  the  cutting  of  timber  trees  used  in  working  the  mine,  by 
one  tenant  constitute  waste  for  which  his  co-tenants  may  recover 
treble  damages  under  section  732  of  the  Code  of  Civil  Procedure? 

Does  such  excavation  and  cutting  and  conversion  constitute  waste 
which  should  be  enjoined? 

Are  the  plaintiffs  entitled  to  an  accounting? 

1.  Section  732  reads:  "  If  a  guardian,  tenant  for  life  or  years, 
joint  tenant  or  tenant  in  common  of  real  property,  commit  waste 
thereon,  any  person  aggrieved  by  the  waste  may  bring  an  action 
against  him  therefor,  in  which  action  there  may  be  a  judgment  for 
treble  the  damages." 

In  Elwcll  v.  Burnside,  44  Barb.  447,  it  was  said:  "  By  the  com- 
mon law  one  tenant  in  common  could  not  be  guilty  of  committing 
waste;  that  is,  the  same  acts  which  if  committed  by  a  tenant  for  life 
or  years  would  constitute  waste,  would  not  be  waste  when  committed 
by  a  tenant  in  common.  He  was  not  liable  to  his  co-tenant  in  an 
action  for  waste,  for  the  injury  done  to  their  common  estate.  As 
he  is  now,  however,  liable  by  statute1  (referring  to  a  statute  similar 
to  the  section  of  the  code  above  recited),  to  respond  to  his  co-ten- 
ant in  this  form  of  action,  for  those  acts  which  constituted  waste 
when  committed  by  a  tenant  for  life  or  years,  we  must  resort  to  the 
common  law  to  ascertain  whether  the  acts  complained  of  in  this  case 
would  be  waste,  had  they  been  committed  by  a  tenant  for  life  or 
years." 

In  the  case  now  before  us  the  quicksilver  mine  had  already  been 

led  when  plaintiffs  and  defendant  became  tenants  in  common. 

If,  therefore,  it  be  conceded  that  under  the  provision  of  our  code  a 

irsfrom  the  bill  that  Hudson  had  sold  off  large  parcels  to  his  co-defendants 
and  thai  they  were  committing  acts  of  irreparable  waste  on  the  land,  stripping 
off  tin-  timber  "  which  was  one  of  the  greatest  elements  of  value  of  the  land." 
The  Court  say:  "It  is  conceded  that  if  Hudson  took  a  fee  of  any  sort  he  is 
exempt  from  the  supervision  oi  chancery  in  respect  to  waste,  and  such 
undoubtedly  is  the  law.  We  think  he  took  .1  qualified  fee."  —  Ed. 
■See  N.  Y.  Code  Civ.  Pro*  .,  .',',  1656-1658,  for  the  N.  Y.  statute. —  Ed. 


II.  4-]  SPECIAL    RESTRICTIONS    ON    USE.  397 

tenant  in  common  is  subject  to  the  action  in  like  circumstances  as 
is  a  tenant  for  life  or  years,  the  plaintiffs  cannot  recover  damages  as 
for  waste.  "As  to  all  tenants  for  life,  the  rule  has  always  been 
that  the  working  of  open  mines  is  not  waste."  And  a  tenant  for 
life  may  open  new  pits  or  galleries  without  committing  waste.  Neel 
v.  Ned,  19  Pa.  St.  328.  A  tenant  for  years  is  not  guilty  of  waste  in 
taking  ore  from  the  mine,  the  sole  subject  of  the  demise,  during 
his  term.     That  is  what  he  pays  rent  for*. 

It  may  be  argued  that,  as  between  lessor  and  lessee  for  years, 
their  contract  contemplates  the  extraction  of  mineral,  and  in  case  of 
a  life  estate,  the  grantor  or  donor  must  intend  that  his  grantee  or 
donee  shall  receive  some  benefit  from  his  estate.  But,  is  it  not  also 
true  from  the  very  nature  of  mining  property  in  this  state,  valuable 
only  because  of  the  mineral  it  is  supposed  to  contain,  that  each  of 
the  co-tenants  may  use  it  in  the  only  way  it  can  be  used?  The 
co-tenants  out  of  possession  may  at  any  time  enter  into  an  equal 
enjoyment  of  their  possessions;  their  neglect  to  do  so  may  be 
regarded  as  an  assent  to  the  sole  occupation  of  the  other.  This  is 
but  another  application  of  the  principle  announced  in  Pico  v.  Colum- 
bet,  12  Cal.  414.  True  the  co-tenant  will  not  be  held  to  assent  to 
the  commission  of  waste  by  the  sole  occupant,  but  the  question 
returns,  What  acts  done  by  him  are  waste? 

It  cannot  be  doubted  that  on  the  part  of  a  mere  trespasser  it  is  a 
wrong  in  the  nature  of  waste  to  remove  any  ore  from  a  mine.  The 
cases  cited  by  appellants  fully  sustain  this  proposition.  But  it  is 
not  a  just  inference  that  as  between  tenants  in  common  the  rule  is 
the  same.  Section  732  of  the  Code  of  Civil  Procedure  does  not 
relate  to  trespasses  committed  by  those  who  have  no  interest  in  the 
property.  Nor  does  it  define  "  waste  "  or  declare  what  acts  com- 
mitted by  a  guardian,  tenant  for  life  or  years,  or  joint  tenant  or 
tenant  in  common,  as  the  case  may  be,  shall  be  waste.  For  the 
appropriate  meaning  of  the  word,  as  applicable  to  acts  done  by 
these  several  classes  of  persons,  we  are  relegated  to  the  principles 
of  the  common  law,  and  to  various  considerations  of  policy  arising 
out  of  different  conditions  which  the  common  law  recognizes  and 
approves. 

The  word  "  waste  "  is  not  an  arbitrary  term  to  be  applied  inflexi- 
bly without  regard  to  the  quantity  or  quality  of  the  estate,  the 
nature  and  species  of  the  property,  or  the  relation  to  it  of  the  per- 
son charged  to  have  committed  the  wrong.  As  was  said  by  Roane,  J., 
in  Findlay  v.  Smith,  6  Munf.  134,  ''in  considering  what  is  waste 
in  this  country,  it  is  to  be  remarked  that  the  common  law  by  which 
it  is  regulated  adapts  itself  in  this  as  in  other  cases  to  the  varied 


398  USE   OF   LAND    BY    GENERAL   OWNER.       [PT.  III.   CII.  I. 

situations  and  circumstances  of  the  country.  .  .  .  The  law  on 
this  subject  must  be  applied  with  reasonable  regard  to  circum- 
stances.'     *     *     * 

In  view  of  the  character  of  the  property,  and  of  plaintiff's  implied 
assent  to  its  sole  occupation  by  defendant  for  mining  purposes,  we 
regard  the  right  of  the  latter  to  the  proceeds  of  its  operations  as 
partaking  of  the  nature  of  an  usufruct;  the  appropriation  of  the  net 
returns  as  a  legitimate  participation  of  the  profits,  and  its  acts  of 
mining  as  not  impairing  or  consuming  the  estate  to  any  greater 
extent  than  must  be  presumed  to  have  been  intended  to  be  allowable 
by  each  of  the  parties  in  interest.     *     *     * 

And  here  it  may  be  added,  applying  the  rule  of  Hi/in  v.  Peck,  it 
would  seem  each  tenant  in  common  of  a  mine  is  at  least  entitled  to 
take  out  his  share  of  the  ore.  That  neither  of  the  tenants  can 
"  look  into  the  ground  "  may  be  a  reason  why  a  court  of  equity 
should  order  an  account  to  be  taken,  but  ought  not  to  operate  a 
prohibition  upon  the  working  of  the  mine  by  anybody. 

2.  Ought  the  court  below  to  have  enjoined  defendant  from  pro- 
ceeding with  its  mining  ? 

"  In  case  of  joint  tenants  in  common,  with  respect  to  whose  acts  of 
waste  the  common  law  has  provided  no  remedy,  courts  of  equity 
will  interfere  when  it  appears  that  waste  has  been  committed  or 
threatened  by  one  tenant  in  common,  who  has  become  possessed  of 
the  whole  premises."  Taylor's  Landlord  and  Tenant,  694.  This 
general  proposition  may  be  conceded  to  be  correctly  stated,  but  the 
very  question  here  is  —  has  waste  been  committed  ?  At  the  com- 
mon law  the  tenant  had  no  redress  for  acts  of  admitted  waste  com- 
mitted by  his  co-tenant.  But  the  latter  might  be  restrained  in 
equity  from  felling  ornamental  trees,  or  from  doing  other  things 
amounting  to  wanton  and  destructive  waste,  which  were  called 
"equitable  waste,"  because  allowable  at  law.  By  our  statute,  how- 
ever, a  tenant  may  recover  damages  of  his  co-tenant  in  every  case 
of  waste.  Holding  as  we  do  that  the  acts  of  defendant  were  not, 
under  the  circumstances,  wanton  or  destructive,  or  any  waste,  it 
follows  plaintiffs  were  not  entitled  to  an  injunction. 


O'Neall,  J.,  in  JOHNSON  v.  JOHNSON. 

2  Hill's  Equity  (S.  C),  277.  —  835. 

I  think  there  is  no  doubt  that  the  late  Dr.  Garden  is  liable  to 
account  for  waste,  both  as  tenant  for  life  of  the  whole,  and  as  ten- 
ant in  common  of  the  remainder  in  fee.     This  is  not  an  application 


II.  4-]  SPECIAL   RESTRICTIONS   ON    USE.  399 

to  stay  waste,  but  for  an  account  of  whatever  may  have  been  com- 
mitted. In  general,  it  may  be  admitted  that  one  tenant  in  common 
cannot  have  an  injunction  against  his  co-tenant.  But  even  between 
them,  under  special  circumstances,  the  court  might  grant  an  injunc- 
tion. As  where  the  waste  was  destructive  to  the  estate  and  not 
within  the  usual  and  legitimate  enjoyment.  Hole  v.  Thomas,  7  Ves. 
589;  Twortv.  Twort,  16  Ves.  128.  And,  as  in  the  case  of  Hawley  v. 
Clowes,  2  J.  C.  R.  122,  where  the  tenant  in  common  in  possession 
was  cutting  down  the  timber  and  threatening  to  persevere.  This  last 
case  carries  the  proposition  further  than  I  should  be  willing  to  sanc- 
tion; it  ought,  I  think,  to  be  shown  that  the  cutting  down  the  tim- 
ber was  not  necessary  to  the  enjoyment  of  the  estate,  and  would 
greatly  prejudice  the  interest  of  the  co-tenant.  But  without  dwell- 
ing further  on  a  view  of  this  part  of  the  case  not  necessary  to  the 
decision  of  the  point  now  in  dispute,  I  will  proceed  to  state  the 
grounds  upon  which  the  defendant  is  liable  to  an  account  for  waste. 
In  several  cases  in  this  State  it  has  been  held  that  a  tenant  in 
common  may  use  the  estate  to  the  extent  of  his  interest  in  it;  and 
in  the  case  of  Kerr  and  wife  et  al.  v.  Robertson,  it  was  held  (by  my 
brethren),  that  for  woodland  cut  down  and  cultivated  by  one  tenant 
in  common,  he  was  not  liable  to  account  to  his  co-tenant  for  rent, 
but  that  the  remedy  of  the  latter  would  be  for  waste.  In  Backler  v. 
Farrmv,  ante  in  (at  the  last  term  in  Columbia),  it  was  held  that 
co-tenants  who  had  cut  down  and  worn  out  a  portion  of  the  land 
much  beyond  their  shares,  were  liable  in  equity  to  account  for  the 
waste,  and  the  commissioner  having  reported  a  sum  certain  as  to 
the  value  of  the  waste  committed,  the  defendants  were  ordered 
to  pay  it.  These  cases  sufficiently  show  the  right  of  the  plaintiffs  to 
come  here  against  the  representatives  of  their  intestate's  co-tenant 
for  an  account  for  the  waste  by  him  committed.  *  *  *  Where  a 
tenant  in  common,  by  cutting  down  and  clearing  woodland,  beyond 
his  interest,  has  greatly  injured  the  interest  of  his  co-tenant,  he 
would  be  liable  for  waste.  And  so  if  the  tenant  for  life  cuts  down 
more  woodland  than  is  necessary  for  the  enjoyment  of  his  estate, 
and  has  injured  the  remainder,  he  would  be  guilty  of  waste,  and 
liable  to  the  account.  It  is  the  ultimate  injury  done  to  the  rights 
of  the  plaintiffs,  as  co-tenants  or  in  remainder,  which  gives  them 
the  right  to  complain.  For  if  the  clearing  of  the  land  had  improved 
its  value  to  the  co-tenant  or  remainderman,  it  could  not  be  pre- 
tended that  still  the  co-tenant,  or  tenant  for  life,  would  be  liable  for 
waste.1 

1  There  seems  to  have  been  no  statutory  provision  on  this  subject  in  South 
Carolina.  —  Ed. 


400  USE    OF    LAND    BY    GENERAL   OWNER.      [FT.  III.  CH.  I. 

VAN  PELT  v.  McGRAW. 

4  New  York,  iio.  —  1850. 

Pratt,  J.  —  There  is  no  doubt  but  that  an  action  on  the  case  will 
lie  for  an  injury  of  the  character  complained  of  in  this  case.  It 
forms  no  objection  to  this  action  that  the  circumstances  of  the  case 
are  novel,  and  that  no  case  precisely  similar  in  all  respects  has  pre- 
viously arisen.  The  action  is  based  upon  very  general  principles, 
and  is  designed  to  afford  relief  in  all  cases  where  one  man  is  injured 
by  the  wrongful  act  of  another,  where  no  other  remedy  is  provided. 
This  injury  may  result  from  some  breach  of  positive  law,  or  some 
violation  of  a  right  or  duty  growing  out  of  the  relations  existing 
between  the  parties.      1  Cow.  Treat.  3. 

The  defendant  AfcGraw,  in  this  case,  came  into  the  possession  of 
the  land  subject  to  the  mortgage.     The  rights  of  the  holder  of  the 
mortgage  were  therefore  paramount  to  his  rights  and  any  attempt 
on  his  part  to  impair  the  mortgage  as  a  security,  was  a  violation  of 
plaintiff's   rights.     But   the   case   is   not   new  in   its   circumstances. 
The  case  of  Gates  v.  Joke,  11  Johns.  136,  was  precisely  like  the  case 
at  bar  in  principle.     That  action  was  brought  by  the  assignee  of  a 
judgment  against  a  person  for  taking  down  and  removing  a  build- 
ing from  the  land  upon  which   the  judgment  was  a  lien.     The  plain- 
tiff's security  was  thereby  impaired.     The  court  in   that  case  sus- 
tained the  action.     The  decision  in  that  case  was  referred   to  and 
approved    in    Lane   v.  Hitchcock,    14   John.    213,    and   in    Gardner  v. 
Heartt,  3   Denio,  234.      Nor  is  there  anything  in  the  case  of  Peter- 
son  v.  Clark,    15    John.   205,  which   conflicts   with   the    principle   of 
these  cases.     That  was  an  action  by  a  mortgagee  in  the  usual  form 
of  an  action  for  waste.     The  declaration  alleged  seisin  in  the  plain- 
tiff, upon  which  the  defendant  took  issue.     There  was  no  allegation 
that   the   mortgagor  was   insolvent   or   the   judgment  as  a  security 
impaired.     The  only  issue  to  be  passed  upon  was  that  in  relation  to 
the  seisin.      It  is  quite  clear  that  upon  such  an   issue  the  mortgagee 
must  fail.      Now  this  action  is  not  based  upon  the  assumption  that 
the   plaintiff's   land    has   been   injured,  but   that    his    mortgage  as   a 
security  has  been  impaired.     His  damages,  therefore,  would  be  lim- 
ited   to   the   amount   of    injury    to  the  mortgage,  however   great  the 
i  v   to   the   land  might  be.      It  could,  therefore,  be  of  no  conse- 
.  whether  the   injury  occurred   before   or   after  forfeiture  of 
the  mortgage.     The  action  is  clearly  maintainable.     *     *     * 

Judgment  affirmed. 


I.  4.]  BY    HOLDER   OF   PARTICULAR   ESTATE.  4OI 

BRADY  v.  WALDRON. 

2  Johnson's  Chancery  (N.  Y.),  148.  —  1816. 

[Reported  herein  at  p.  176.] 


WITMER'S  APPEAL. 

45  Pennsylvania  State,  455.  —  1863. 
[Reported  herein  at  p.  263.] 


STATE  SAVINGS  BANK  v.  KERCHEVAL. 

65  Missouri,  682.  —  1877. 
[Reported  herein  at  p.  280.] 


CHAPTER  II. 


Use  by  Tenants  for  Life,  for  Years  or  at  Will 
in  Possession. 

I.  Ordinary  use. 

1.  The   Temporary   Uses    and    Profits  —  Crops   and   Rents- 
Emblements  in  General. 

BABB  v.  PERLEY 

1  Maine,  6.  —  1820. 

(Reported  herein  at  p.  27.) 


SARLES  v.  SARLES. 

3  Sandford's  Chancery  (N.  Y.),  601.  —  1846. 

[Reported  herein  at  p.  450.] 

LAW  OF  PROP.   IN  LAND  —  26 


402  USE   OF   LAND.  [PT.  III.  CH.  II. 

WHIPPLE  v.  FOOT. 

2  Johnson  (N.  Y  ),  418.  —  1807. 

Trover  for  a  quantity  of  wheat  in  the  sheaf.  Defendant,  the 
sheriff  of  Chenango  county,  had  levied  upon  the  wheat  while  growing 
and  removed  the  same.  After  it  was  gathered,  notwithstanding  a  levy 
thereon  made  by  plaintiff,  the  sheriff  of  Madison  county,  after  the 
wheat  was  in  the  sheaf,  defendant  sold  it.  Verdict  for  defendant 
subject  to  the  opinion  of  the  court. 

Thompson,  J.,  delivered  the  opinion  of  the  court.  If  the  execu- 
tion, under  which  the  defendant  justifies  the  seizure  and  sale  of  the 
wheat  growing  on  the  ground  be  deemed  sufficient,  it  is  unneces- 
sary to  determine  the  effect  of  the  bill  of  sale,  which  forms  a  dis- 
tinct branch  of  the  defense.  The  defendant,  soon  after  receiving 
the  execution,  and  between  the  teste,  and  return  of  it,  went  to  the 
house  of  Hatch,  the  debtor,  and  levied  on  his  personal  property, 
and  particularly  mentioned  the  wheat  in  the  ground.  This  was  in 
December.  In  the  ensuing  August,  when  the  wheat  was  ripe  for 
harvest,  the  defendant,  by  virtue  of  the  execution,  and  with  all  due 
diligence,  caused  the  wheat  to  be  cut,  carried  away  and  sold.  The 
fee  of  the  land  on  which  the  wheat  was  sowed,  belonged  to  one 
Smith;  and  Hatch  had  the  use  of  it  so  long  only  as  would  be  suffi- 
cient to  pay  him  for  clearing.  Under  these  circumstances,  I  see 
no  valid  objections  against  considering  this  property  as  held  by  this 
execution.  The  wheat  growing  on  the  ground,  was  a  chattel,  and 
as  such,  subject  to  be  taken  in  execution.  1  Salk.  368;  1  Bos.  & 
Pul.  397;  6  East,  604;  note  Rob.  on  Frauds,  126.  The  defendant, 
when  he  levied,  took  all  the  possession  which  the  subject-matter 
would  permit,  and  it  was  sold  as  soon  as  it  was  fit  to  be  reaped. 
This,  therefore,  could  not  be  considered  as  a  dormant  execution, 
and  coming  within  the  operation  of  the  rule,  that  if  a  creditor  seize 
the  goods  of  his  debtor  on  execution,  and  suffers  them  to  remain  in 
his  hands,  the  execution  is  deemed  to  be  fraudulent,  and  void  as 
against  a  subsequent  execution.  Prec.  in  Cha.  286;  1  Vernon, 
245;  7  Mod.  37;  2  Term,  596.  The  reason  of  this  rule  is  stated  to 
be,  that  in  such  case  there  is  no  change  of  possession,  and  so  no 
alteration  of  the  property.  But  in  the  case  before  us,  the  sheriff 
took  all  the  possession  of  which  the  chattel  was  susceptible.  The 
nature  of  the  property  accounts  for  the  delay,  and  destroys  the  pre- 
sumption of  fraud,  that  might  otherwise  exist.  The  sheriff  might, 
perhaps,  have  sold  the  wheat  while  growing,  and  the  purchaser 
would  then  have  been   entitled  to  enter  for  the  purpose  of  cutting 


I.   i.]  BY   HOLDER   OF    PARTICULAR   ESTATE.  403 

and  carrying  it  away.  But  such  a  sale  would  probably  have  been 
very  unfavorable,  as  the  certainty  and  value  of  the  crop  could  not 
be  ascertained.  (Owen,  70  Vent.  222.)  The  mere  delay,  in  such  a 
case,  to  sell  until  the  crops  should  be  fit  for  harvest,  will  not,  of  itself, 
amount  to  a  fraud  in  law;  and  this  is  the  only  ground  on  which  the 
judgment  and  execution,  under  which  the  defendant  justifies,  has 
been  impeached.  The  justification  having  been  made  out,  the 
defendant  would  be  entitled  to  judgment,  but  by  the  provision  in 
the  case,  we  can  only  direct  a  judgment  of  nonsuit  to  be  entered. 

Judgment  of  nonsuit. 


GRAVES  v.  WELD. 
5  Barnewell  &  Adolphus  (Eng.,  K.  B.),  105.  —  1833. 

Denman,  C.  J.  —  In  this  case  the  plaintiff  is  undoubtedly  entitled 
to  emblements.  The  question  is,  whether  that  which  is  here  called 
the  second  crop  of  clover  falls  under  that  description.  We  think  it 
does  not. 

In  the  very  able  argument  before  us,  both  sides  agree  as  to  the 
principle  upon  which  the  law  gives  emblements  was  originally  estab- 
lished. That  principle  was,  that  the  tenant  should  be  encouraged 
to  cultivate,  by  being  sure  of  receiving  the  fruits  of  his  labor;  but 
both  sides  were  also  agreed  that  the  rule  did  not  extend  to  give  the 
tenant  all  the  fruits  of  his  labor,  or  the  right  might  be  extended  in 
that  case  to  things  of  a  more  permanent  nature,  as  trees  or  to  more 
crops  than  one;  for  the  cultivator  very  often  looks  for  a  compensa- 
tion for  his  capital  and  labor  in  the  produce  of  successive  years.  It 
was,  therefore,  admitted  by  each,  that  the  tenant  could  be  entitled 
to  that  species  of  product  only  which  grows  by  the  industry  and 
manurance  of  man,  and  to  one  crop  only  of  that  product.  But  the 
plaintiff  insisted  that  the  tenant  was  entitled  to  the  crop  of  any 
vegetable  of  that  nature,  whether  produced  annually  or  not,  which 
was  growing  at  the  time  of  the  cesser  of  the  tenant's  interest;  the 
defendant  contended  that  he  was  entitled  to  a  crop  of  that  species 
only  which  ordinarily  repays  the  labor  by  which  it  is  produced 
within  the  year  in  which  that  labor  is  bestowed,  though  the  crop 
may,  in  extraordinary  seasons,  be  delayed  beyond  that  period.  And 
the  latter  proposition  we  consider  to  be  the  law. 

It  is  not,  however,  absolutely  necessary  to  decide  this  question, 
for,  assuming  that  the  plaintiff's  rule  is  the  correct  one,  the  crop 
which  is  claimed  was  not  the  crop  growing  at  the  end  of  the  term. 
The  last  cestui  que  vie  died  in  July;  the  barley  and  the  clover  were 


404  USE   OF   LAND.  [PT.  III.  CH.  II. 

then  growing  together  on  the  same  land,  and  a  crop  of  both, 
together,  was  taken  by  the  plaintiff  in  the  autumn  of  that  year, 
though  the  crop  of  clover  of  itself  was  of  little  value.  Thus  the 
plaintiff  has  had  one  crop;  and  if  it  were  necessary,  either  generally) 
or  in  the  particular  case,  that  the  crop  taken  should  remunerate  the 
tenant,  we  must  observe,  that  though  the  crop  of  clover  alone  did 
not  repay  the  expense  of  sowing  and  preparation,  the  case  does  not 
find  that  both  crops  together  did  not  repay  the  expenses  incurred  in 
raising  both.  The  decision,  therefore,  might  proceed  on  this  short 
ground;  but  as  the  more  general  and  important  question  has  been 
most  fully  and  elaborately  argued,  we  think  it  right  to  say  we  are 
satisfied  that  the  general  rule  laid  down  by  the  defendant's  counsel 
is  the  right  one. 

The  principal  authorities  upon  which  the  law  of  emblements 
depends  are  Littleton,  section  68,  and  Coke's  Commentary  on  that 
passage.  The  former  is  as  follows:  "  If  the  lessee  soweth  the 
land,  and  the  lessor,  after  it  is  sowne  and  before  the  come  is  ripe,  put 
him  out,  yet  the  lessee  shall  have  the  corne,  and  shall  have  free  entry, 
egresse  and  regresse  to  cut  and  carrie  away  the  corne,  because  he 
knew  not  at  what  time  the  lessor  would  enter  upon  him."  Lord 
Coke,  Co.  Litt.  55,  a,  says,  "  the  reason  of  this  is,  for  that  the 
estate  of  the  lessee  is  uncertaine,  and,  therefore,  lest  the  ground 
should  be  unmanured,  which  should  be  hurtful  to  the  commonwealth, 
he  shall  reap  the  crop  which  he  sowed  in  peace,  albeit  the  lessor  doth 
determine  his  will  before  it  be  ripe.  And  so  it  is  if  he  set  roots  or  sow 
hempe  or  flax,  or  any  other  annual  profit,  if  after  the  same  be  planted, 
the  lessor  oust  the  lessee;  or  if  the  lessee  dieth,  yet  he  or  his 
executors  shall  have  that  year's  crop.  But  if  he  plant  young  fruit 
trees,  or  young  oaks,  ashes,  elms,  etc.,  or  sow  the  ground  with 
acornes,  etc.,  there  the  lessor  may  put  him  out  notwithstanding, 
because  they  will  yield  no  present  annual  profit."  These  authorities 
are  strongly  in  favor  of  the  rule  contended  for  by  the  defendant's 
counsel;  they  confine  the  right  to  things  yielding  present  annual 
profits,  and  to  that  year's  crop,  which  is  growing  when  the  interest 
determines.  The  case  of  hops,  which  grow  from  ancient  roots,  and 
which  yet  may  be  emblements,  though  at  first  sight  an  exception, 
really  falls  within  this  rule.  In  Latham  v.  Atwood,  Cro.  Car.  515, 
they  were  held  to  be  "  like  emblements,"  because  they  were  "  such 
things  as  grow  by  the  manurance  and  industry  of  the  owner,  by  the 
making  of  hills,  and  setting  poles;  "  that  labor  and  expense,  with- 
out which  they  would  not  grow  at  all,  seems  to  have  been  deemed 
equivalent  to  the  sowing  and  planting  of  other  vegetables.  Mr. 
Cruis*-  in  his  Diycst,  I.,  1  10,  Ed.  3,  says  that  this  determination  was 


I.   i.]  BY    HOLDER   OF   PARTICULAR   ESTATE.  405 

probably  on  account  of  the  great  expense  of  cultivating  the  ancient 
roots.  It  may  be  observed,  that  the  case  decides  that  hops,  so  far 
as  relates  to  their  annual  product  only,  are  emblements;  it  by  no 
means  proves  that  the  person  who  planted  the  young  hops  would 
have  been  entitled  to  the  first  crop  whenever  produced. 

On  the  other  hand,  no  authority  was  cited  to  show  that  things 
which  take  more  than  a  year  to  arrive  at  maturity  are  capable  of 
being  emblements,  except  the  case  of  Kingsbury  v.  Collins,  4  Bing. 
202,  in  which  teazles  were  held  by  the  Court  of  Common  Pleas  to 
be  so.  But  this  point  was  not  argued,  and  the  court  does  not 
appear  to  have  been  made  acquainted  with  the  nature  of  that  crop 
or  its  mode  of  cultivation,  or  it  may  be,  that  in  the  year  when  the 
plant  is  fit  to  gather,  so  much  labor  and  expense  is  incurred  as  to 
put  it  on  the  same  footing  as  hops.  We  do  not,  therefore,  consider 
this  case  as  an  authority  upon  the  point  in  question. 

The  note  of  Sergeant  Hill,  in  9  Vin.  Abr.  368,  in  Lincoln's  Inn 
Library,  which  Mr.  Gambier  quoted,  is  precisely  in  point  in  the 
present  case,  and  proves  that,  in  the  opinion  of  that  eminent  lawyer, 
the  crop  of  clover  in  question  does  not  belong  to  the  plaintiffs.  It 
is  stronger,  because  there  the  estate  of  the  tenant  is  supposed  to 
determine  after  harvest,  whereas  here  it  determined  before. 

The  weight  of  authority,  therefore,  is  in  favor  of  the  rule  insisted 
upon  by  the  defendant.  There  are,  besides  some  inconveniences, 
doubts,  and  disputes,  which  were  pointed  out  in  the  argument, 
which  would  arise  if  the  other  rule  were  to  prevail.  Is  the  tenant 
to  have  the  feeding  in  Autumn,  besides  the  crop  in  the  following 
year?  If  so,  he  gets  something  more  than  one  crop.  Is  he  to  have 
the  possession  of  the  land  for  the  purpose?  Or  is  the  reversioner 
to  have  the  feeding;  and,  in  that  case,  is  the  reversioner  to  be 
liable  to  an  action  if  he  omits  to  feed  off  the  clover,  and  thereby 
spoils  the  succeeding  crop?  These  inconveniences  do  not  arise  if 
the  defendant's  rule  is  adopted.  It  also  prevents  the  reversioner 
from  being  kept  out  of  the  full  enjoyment  of  his  land  for  a  longer 
time  than  a  year  at  most;  whereas,  upon  the  other  supposition,  that 
period  may  be  extended  to  two  or  more  years,  according  to  the 
nature  of  the  crop. 

We  are,  therefore,  of  opinion  that  the  rule  regulating  emblements 
is  that  which  the  defendant  has  contended  for,  and  that  for  this 
reason  also  he  is  entitled  to  our  judgment. 

Judgment  for  the  defendant. 


406  USE   OF   LAND.  [PT.  III.  CH.  II. 

WHITMARSH  v.  CUTTING. 

10  Johnson  (N.  Y.),  360.  —  1813 

Trespass  quare  clausum  /regit  for  entering  plaintiff's  close  and 
carrying  away  a  quantity  of  wheat  and  rye.  One  Hilton  had  a  lease 
of  the  premises  in  question  and  sowed  the  grain  during  his  term. 
After  the  expiration  of  his  term  plaintiff  leased  the  premises  and 
gathered  the  grain.  Defendant  justifies  the  trespass  under  an  exe- 
cution against  Hilton.     Verdict  for  defendant.     Plaintiff  appeals. 

Per  Curiam.  —  The  verdict  was  clearly  against  law.  The  crop 
sown  did  not  belong  to  Hilton,  but  to  his  successor.  This  lease  was 
for  a  year  certain,  and  then  renewed  for  the  next  year;  and  it  was 
his  folly  to  sow  when  he  knew  that  his  term  would  expire  before  he 
could  reap.  The  doctrine  of  emblements  is  founded  entirely  on  the 
uncertainty  of  the  termination  of  the  tenant's  estate,  where  that  is 
certain  there  exists  no  title  to  emblements.  Without  touching  any 
other  points,  we  are  of  opinion  that  the  verdict  was  against  law  and 
evidence,  and  that  the  judgment  below  must  be  reversed. 

Judgment  reversed. 


CLARK  v.  HARVEY. 

54  Pennsylvania  State,  142.  —  1867. 

Thompson,  J.  —  By  the  custom,  or  as  it  has  been  called,  the  com- 
mon law  of  Pennsylvania,  the  tenant  of  a  farm  under  a  lease  from 
year  to  year  for  agricultural  purposes,  is  entitled  to  the  way-going 
crop.  This  is  the  law,  in  view  of  which,  such  letting  must  be  pre- 
sumed to  have  been  made,  if  nothing  to  the  contrary  be  said.  In 
the  case  before  us  this  implication  was  attempted  to  be  rebutted  by 
proof  of  bad  husbandry,  and  a  manifest  trespass  justified  by  an 
alleged  breach  of  contract.  If  there  were  bad  husbandry  in  the 
case,  the  redress  for  that  was  by  suit,  and  not  by  confiscation  of 
the  tenant's  rights.  The  one  thing  was  no  defense  to  the  other,  and 
the  learned  judge  was  entirely  within  the  law  in  charging  as  he  did. 
The  case  of  Lewis  v.  Jones,  5  Harris,  262,  referred  to  by  the  counsel 
for  the  plaintiffs  in  error,  was  upon  a  different  subject  from  that 
involved  in  this  case,  and  is  no  authority  for  the  ground  assumed  in 
the  case.  The  jury  have.-  found  that  the  plaintiffs  left  a  fall  crop  in 
the  ground  when  they  left  the  premises,  and  have  estimated  its 
value    in    the    damages   given.      There    being  a   crop  in   the  ground, 


I.   i.]  BY    HOLDER   OF   PARTICULAR    ESTATE.  407 

therefore,  whether  good  or  bad,  the  plaintiffs  had  a  right  to  it  and 
to  take  it  away  when  it  ripened,  and  this  being  found  by  the  verdict, 
and  that  the  defendants  destroyed  it,  there  was  an  end  of  the  matter. 

Judgment  affirmed. 


STEWART  v.  DOUGHTY. 

g  Johnson  (N.  Y.),  108.  —  1812. 

Kent,  Ch.  J.  — There  are  several  questions  raised  in  this  case, 
which  it  will  be  necessary  to  consider. 

1.  The  first  question  is,  whether  the  plaintiffs  be  entitled,  in  any 
form  of  action,  to  recover. 

The  lease  was  determined  while  the  crop  was  in  the  ground,  and 
it  was  determined  by  the  lessor,  under  the  provision  contained  in 
the  twelfth  article  of  the  agreement.  The  right  to  the  emblements 
which  would  otherwise  exist  in  the  lessee,  as  the  duration  of  his 
estate  depended  upon  the  will  of  the  lessor,  does  not  appear  to  be 
controlled  or  affected  by  the  special  contract  of  the  parties.  In 
case  of  the  determination  of  the  estate  by  the  lessor,  the  contract 
provides  for  compensation  only,  "  for  preparing  the  ground  for  the 
reception  of  seed,  or  for  any  other  extra  labor."  This  preparation 
of  the  ground  for  the  reception  of  seed  is  not  necessarily  a  substitute 
for  the  right  to  the  emblements,  for  it  may  apply  to  clearing  and 
manuring  and  ploughing  the  ground,  and  these  acts  may  have  taken 
place  long  before  seed  time.  The  common  law  has  established  a 
distinction  in  respect  to  this  very  subject  of  emblements  and  the 
cost  of  ploughing  and  manuring  the  ground,  so  that  the  determina- 
tion of  an  estate  at  will  would  give  to  the  lessee  his  emblements,  but 
not  any  compensation  for  these  improvements.  He  might  be  ousted 
of  the  possession  before  the  crop  was  in  the  ground,  and  wholly  lose 
the  expense  of  ploughing  and  manuring  the  land  though  if  he  was 
ousted  afterwards  he  would  be  entitled  to  the  emblements.  Bro. 
Abr.,  tit.  Emblements,  pi.  7,  tit.  Tenant,  per  copie  de  court  roll,  pi.  3. 
We  ought  to  consider  the  compensation  intended  by  the  article 
for  such  a  case  as  this,  and  not  as  in  equivalent  for  the  crop  itself. 
The  doctrine  of  emblements  is  founded  on  the  clearest  equity  and 
the  soundest  policy,  and  ought  to  receive  a  liberal  encouragement. 
Compensation  for  preparing  the  ground  for  seed  is  not  an  indemnity 
for  the  loss  of  the  crop,  which  includes  the  loss  of  the  seed,  the  labor 
of  sowing  and  nursing  it,  and  the  hopes,  to  the  laborer  and  his  family, 
of  a  fruitful  harvest. 

While  the  crop  was  in  the  ground,  and  before  notice  to  quit,  it 


408  USE  OF   LAND.  [PT.  III.  CII.  II. 

was  sold  by  the  sheriff  under  an  execution  against  the  lessee,  and 
the  plaintiff  became  the  purchaser.  This  was  a  valid  sale,  and  the 
purchaser  became  entitled  to  the  right  of  ingress,  etc.,  to  gather 
the  crop.  He  succeeded  to  all  the  interest  of  the  original  lessee  in  the 
crop  sown  and  so  the  law  was  understood  by  this  court  in  the  case 
of  Whipple  v.  Foot,  2  Rep.  423.  The  subsequent  act  of  the  lessee  in 
abandoning  the  premises  soon  after  notice  was  given,  did  not  impair 
or  affect  the  purchaser's  right  which  had  already  vested.  Quitting 
the  premises  was  not  injurious  to  the  lessor.  He  lost  no  rent  by  it. 
It  was  in  furtherance  of  his  wishes,  and  in  obedience  to  his  notice; 
and  if  the  lessee  had  continued  in  possession  for  the  whole  six 
months,  he  would  probably  have  been  an  injury  to  the  farm,  by  pre- 
venting its  improvement  the  ensuing  season.  His  prompt  abandon- 
ment of  the  premises  was  no  injury,  and  no  reason  why  he  should 
lose  his  emblements,  even  if  we  were  to  admit  that  he  had  it  in  his 
power,  by  this  means,  to  affect  the  purchaser's  interest.  The  lessor 
himself  did  not  intend  by  the  notice  to  deprive  the  lessee  of  the 
crop  already  sown;  for  the  six  months  would  not  have  expired  until 
after  harvest.  The  plaintiff,  therefore,  appears  to  have  had  a  clear 
right  and  title  to  the  emblements  at  the  time  they  were  gathered  by 
the  defendants. 

The  next  question  is,  whether  the  plaintiff  is  entitled  to  recover 
the  whole  or  only  a  moiety  of  the  crop.  This  will  depend  upon  the 
question  whose  property  the  grain  was  before  a  moiety  was  delivered 
to  the  lessor.  By  the  eighth  article  of  the  agreement,  the  lessee 
was  to  "  render  and  yield  and  pay  to  the  lessor  one-half  of  all  the 
wheat,  rye,  corn,  and  other  grain  raised  on  the  farm,  in  each  year, 
in  the  bushel,  after  deducting  the  seed  and  also  the  one-half  of  the 
butter  and  cheese,"  etc.,  and  by  the  ninth  article  he  was  to  deliver 
such  a  proportion  of  hay,  etc..  But  here  was  a  lease  for  five  years, 
and  the  articles  of  agreement  expressly  declared  that  Van  Antwerp 
"  rented  and  hired,  and  suffered  the  lessee  to  possess  and  enjoy  the 
farm  and  gave  him  the  quiet  uninterrupted  possession,"  etc.  An 
interest  in  the  soil  passed,  and  the  lessee  would  have  been  entitled 
to  an  action  of  trespass  for  any  unlawful  entry  upon  it;  the  propor- 
tion of  the  production  of  the  farm  which  the  tenant  was  yearly  to 
render,  was  a  payment  of  rent  in  kind.  They  were  not  tenants  in 
common  in  the  crops  and  productions  raised.  The  interest  and 
property  in  the  crops  was  exclusively  in  the  tenant,  until  he  had 
separated  and  delivered  to  the  lessor  his  proportion.  It  might  as 
well  be  said  that  the  lessor  would  have  been  tenant  in  common  in  the 
<  rop,  though  he  was  to  receive  only  every  tenth  bushel  of  grain  as  a 
rent.   The  interest  in  the  whole  crop,  therefore,  passed  to  the  plaintiff. 


I.  I.]  BY   HOLDER   OF    PARTICULAR   ESTATE.  409 

The  only  remaining  question  is  whether  the  plaintiff  is  entitled  to 
an  action  of  trespass  quare  clausum  f regit  for  the  loss  of  the  crop. 
As  he  had  an  exclusive  interest,  I  think  the  action  will  lie.  The 
case  of  Crosby  v.  Wadsworth,  6  East,  602,  was  an  action  of  trespass 
quare  clausum  f regit,  and  the  court  of  K.  B.  held  that  the  action  was 
proper  if  the  plaintiff  had  made  out  his  alleged  interest,  which 
was  to  the  exclusive  enjoyment  of  a  growing  crop  of  grass,  and  to 
the  right  to  cut  and  carry  it  away.  The  general  language  of  the 
authorities  is  to  this  effect  that  the  grantee  vestura  terra  or  herbagii 
terra,  may  maintain  trespass,  though  he  has  not  the  soil.  Co.  Litt. 
4b;  Com.  Dig.,  tit.  Trespass,  B.  1.  There  are  numerous  authori- 
ties which  support  the  general  position,  and  which  are  referred  to  in 
Crosby  v.  Wadsworth,  and  in  1  Chit,  on  Plead.  176,  177. 

The  court  are,  accordingly,  of  opinion  that  the  plaintiff  is  entitled 
to  judgment. 


BRADLEY  v.  BAILEY. 

56  Connecticut,  374.  —  1888. 


Beardsley,  J.  —  This  is  a  complaint  in  trespass,  in  which  the 
defendants  appeal  from  an  adverse  judgment  in  the  Court  of  Com- 
mon Pleas. 

The  material  allegations  of  the  complaint  are  that  one  John  R. 
Bradley  was  tenant  for  life  of  a  certain  tract  of  land,  of  which  the 
defendant  George  R.  Bailey  was  tenant  for  life  in  remainder;  that 
John  B.  Bailey,  in  the  month  of  April,  1885,  leased  the  tract  to  the 
plaintiff  for  the  term  of  three  years;  that  the  plaintiff  sowed  a  por- 
tion of  the  tract  with  winter  rye  on  the  18th  of  September,  1885; 
and  that  John  B.  Bailey  died  on  the  20th  of  September,  1885,  and 
that  George  R.  Bailey  and  the  other  defendant  by  his  direction,  in 
the  month  of  June  following  plowed  in  and  destroyed  the  crop  of 
rye  then  maturing.  The  truth  of  these  allegations  of  the  complaint 
was  admitted  upon  the  trial  except  that  the  defendant  claimed  that 
the  rye  was  sown  on  the  19th  instead  of  the  18th  day  of  September, 
1885,  which,  however,  is  immaterial. 

The  only  question  which  we  are  called  upon  to  consider  arose 
under  the  issue  formed  by  the  plaintiff's  traverse  of  the  second 
answer  to  the  complaint,  the  material  part  of  which  is  as  follows: 
The  defendants  say  that  if  the  plaintiff  did  anything  upon  said  prem- 
ises on  September  18th  or  19th,  1885,  he  did  the  same  with  full 
knowledge  that  said  John  B.  Bailey  was  then  dying ;  that  if  he  did  any 
thing  it  was   nothing   more   than   to   harrow  the  soil  in  a  hasty  and 


4IO  USE   OF   LAND.  [PT.  III.   CH  II. 

superficial  manner  immediately  after  he  had  dug  his  crop  of  pota- 
toes from  the  same,  and  to  scatter  a  few  seeds  upon  the  same,  with- 
out having  first  plowed  and  manured  the  same,  as  is  customary  and 
proper  with  the  farmers  in  this  state,  and  at  an  untimely  season  of 
the  year,  and  without  laying  the  same  down  to  grass,  as  is  custom- 
ary and  proper;  all  of  said  acts  of  the  plaintiff  being  for  the  purpose 
of  defrauding  said  George  R.  Bailey  in  his  use  of  and  right  to  said 
land  after  the  death  of  said  John  B.  Bailey. 

Upon  the  trial  of  this  case  to  the  jury  the  plaintiff,  in  reply  to 
inquiries  made  by  the  defendants  upon  cross-examination,  described 
the  manner  in  which  he  prepared  the  ground  for  the  crop.  The 
defendant  afterward  asked  his  own  witness  this  question,  "  What  is 
the  customary  way  of  sowing  rye  and  preparing  the  ground  for  it?  " 
The  court  excluded  this  question  upon  the  objection  of  the  plaintiff 
that  there  was  no  established  custom  and  that  it  was  immaterial. 
The  defendants  claimed  the  testimony  to  show  that  the  land  was  not 
prepared  in  the  customary  way  as  a  part  of  the  alleged  defense. 
This  ruling  of  the  court  is  assigned  for  error. 

In  support  of  the  allegation  in  the  answer  that  the  plaintiff  knew 
that  Bradley,  the  tenant  for  life,  was  dying  when  he  sowed  the  crop, 
the  defendants  called  Dr.  Webb,  the  physician  who  attended  him 
during  the  month  of  September,  1885,  and  who,  after  describing  his 
symptoms,  testified  that  for  the  last  week  or  more  of  his  life  he  was 
gradually  failing  every  day,  growing  weaker  and  nearer  to  his  end 
every  day,  and  that  this  was  apparent  to  every  one  who  had  common 
sense. 

It  was  admitted  that  at  the  time  of  his  death,  and  for  several 
months  before,  he  resided  with  the  plaintiff. 

The  defendants  then  offered  several  witnesses  to  testify  —  one, 
that  Bradley  appeared  to  be  dying  on  the  16th  and  17th  of  Septem- 
ber, when  the  plaintiff  was  present;  another,  that  the  plaintiff's 
attention  was  called  by  him  to  Bradley's  condition  on  the  18th  of 
September,  1S85;  another,  that  the  plaintiff  had  said  on  the  iSth 
and  19th  of  September  that  Bradley  could  not  live  through  the 
night;  and  another,  that  the  plaintiff  had  said  a  few  days  before 
Bradley's  death,  that  he  was  very  low.  All  of  this  evidence,  except 
the  testimony  of  Dr.  Webb,  was  objected  to  by  the  plaintiff  and 
excluded.  The  plaintiff,  against  the  objection  of  the  defendants,  was 
permitted  to  testify  in  contradiction  of  Dr.  Webb,  that  the  doctor 
had  told  him,  as  late  as  the  last  week  of  Bailey's  life,  that  "  he  might 
live  for  quite  a  long  time;  that  he  might  get  out  of  it  and  live  for  a 
year  or  two,  and  perhaps  longer,  and  might  not  live  so  long  as  that." 

The  court  charged  the  jury  on  this  point  as  follows: 


I.   I.]  BY    HOLDER   OF   PARTICULAR   ESTATE.  411 

"  The  question  then  is,  did  the  plaintiff  know  for  a  certainty  that  his 
lessor,  the  tenant  for  life  of  the  estate,  would  die  before  he  could 
mature  that  crop?  If  we  find  that  there  was  any  uncertainty  in 
regard  to  the  duration  of  the  life  of  Mr.  Bailey,  you  must  find  for 
the  plaintiff.  If  you  find  that  the  time  of  his  death  was  so  certain 
that  he  (Bradley)  had  no  doubt  in  regard  to  it,  then  your  verdict 
should  be  for  the  defendants." 

The  several  rulings  of  the  court  and  the  charge  to  the  jury 
referred  to,  are  assigned  for  error.  We  do  not  think  that  either  of 
them  afford  the  defendants  any  ground  of  exception.  On  the  con- 
trary, we  think  that  the  charge  was  too  favorable  to  the  claim  of  the 
defendants.  It  was  adapted  to  the  issue  between  the  parties,  and 
would,  perhaps,  have  been  unobjectionable  if  that  issue  had  been  a 
material  one;  but  the  issue  was  an  immaterial  one  and  the  plaintiff 
would  have  been  entitled  to  judgment  upon  the  conceded  facts  if  it 
had  been  found  in  favor  of  the  defendants. 

If  it  were  possible  for  the  plaintiff  to  have  had  absolute  knowl- 
edge beforehand  of  the  time  of  Mr.  Bailey's  death,  and  he  had 
known  that  it  would  occur  before  the  maturity  of  the  crop  which  he 
was  planting,  his  right  to  it  would  not  be  thereby  defeated. 

In  Co.  Litt.,  p.  55  b.,  note  1,  the  law  is  thus  stated:  "  So,  there- 
fore, if  tenant  for  life  soweth  the  ground  and  dieth,  his  executors 
shall  have  the  corn,  for  that  his  estate  was  uncertain  and  determined 
by  the  act  of  God;  and  the  same  law  is  of  the  lessee  for  years  of  the 
tenant  for  life."  Blackstone  says,  (2  Com.  122):  "  Therefore,  if 
a  tenant  for  his  own  life  sows  the  land  and  dies  before  harvest,  his 
executors  shall  have  the  emblements  or  profits  of  the  crop;  for  the 
estate  was  determined  by  the  act  of  God,  and  it  is  a  maxim  of  the 
law  that  actus  Dei  nemini  facit  injuriam."  We  are  referred  to  no  case 
in  which  the  exception  claimed  by  the  defendants  has  been  made  to 
this  rule  during  the  centuries  of  its  existence. 

To  hold  that  this  right  may  be  defeated  after  the  tenant's  death, 
by  evidence  of  his  condition  of  health,  or  by  his  declarations  or 
those  of  his  lessee  imputing  a  belief,  however  well  founded,  or 
knowledge,  if  such  knowledge  be  possible,  that  his  life  would  not 
continue  until  harvest  time,  would  in  many  cases  subvert  an  import- 
ant object  of  the  rule,  the  encouragement  of  husbandry,  and  open  a 
fruitful  source  of  unseemly  litigation.  A  tenant  in  failing  health, 
especially  if  he  had  expressed  a  belief  that  his  end  was  near,  would 
naturally  hesitate  to  put  in  crops  which  might  be  successfully 
claimed  by  his  successor  in  title,  or  in  respect  to  which  his  estate 
might  become  involved  in  litigation. 

The  question  asked  by  the  defendants    of  a  witness  as  to  the  cus- 


412  USE   OF   LAND.  [PT.  III.  CH.  II. 

tomary  mode  of  sowing  rye  and  preparing  the  ground  for  it,  was 
properly  excluded.  We  have  shown  that  the  plaintiff  had  a  right  to 
sow  the  rye  for  his  own  use,  and  it  was  a  matter  of  no  consequence 
to  the  remainderman  how  he  did  it.  Nor  did  his  right  to  the  crop 
depend  upon  his  cultivating  the  land  according  to  the  rules  of  good 
husbandry.  If  it  was  done  in  an  unhusbandlike  manner  and  in  such 
a  way  that  the  crop  would  be  an  inconsiderable  one,  it  would  be 
wholly  his  own  loss.  The  fact  of  his  hurried  and  imperfect  mode  of 
sowing  the  land  may  have  been  of  pertinence  to  the  question  whether 
he  was  in  reality  sowing  rye  or  only  pretending  to  do  so.  But  it  was 
not  offered  for  this  purpose,  but  to  show  that  he  was  acting  in  the 
belief  that  the  tenant  for  life  would  die  in  a  few  days.  But  as  we 
have  already  shown,  this  belief  was  of  no  importance.  His  right 
did  not  depend  upon  the  condition  of  the  tenant  for  life.  And  he 
would  have  no  interest  in  putting  any  labor  on  the  land  as  a  matter 
of  mere  pretense,  as  he  would  only  lose  his  labor  by  so  doing. 
There  is  no  error  in  the  judgment  appealed  from. 


MARSHALL  v.  MOSELEY. 

21  New  York,  280.  —  i860. 

Action  for  money  had  and  received  by  defendant  to  the  use  of 
plaintiffs.     Judgment  below  for  plaintiffs.     Defendant  appeals. 

Comstock,  Ch.  J.  —  Mrs.  Coe,  by  virtue  of  her  husband's  will, 
had  a  life  estate  in  the  premises,  out  of  which  the  rents  in  question 
accrued,  and  the  plaintiffs  owned  the  remainder  in  fee.  She  died 
April  5,  1855,  the  leases  being  then  unexpired.  On  the  1st  of  May, 
following,  the  rents  became  due  for  the  preceding  quarter  of  a  year. 
The  defendant  is  the  executor  and  residuary  legatee  of  Mrs.  Coe, 
and  having  collected  the  rents  for  the  whole  quarter,  the  principal 
question  in  the  case  is,  whether  he  is  entitled  to  apportion  them  by 
dividing  the  quarter  into  two  periods  of  time,  one  before  and  the 
other  after  her  death,  and  by  retaining  in  his  own  hands  the  portion 
which  accrued  before  that  event. 

As  rent  follows  the  reversionary  estate,  the  law  allows  it  to  be 
apportioned  where  that  estate  becomes  divided  amongst  different 
owners.  This  is  according  to  the  maxim,  "  accessorium  sequitur 
naturam  sui principalis."  Thus,  if  a  reversion  descend  on  the  death 
of  the  ancestor  who  gave  the  lease,  and  the  coparceners  or  heirs 
make  a  partition,  the  rent  will  be  apportioned  in  favor  of  each  of 
them.     So  if  the  reversion  be  severed  by  will  or  even  by  conveyance 


I.  I.]  BY    HOLDER   OF    PARTICULAR    ESTATE.  413 

of  the  owner,  the  same  result  will  take  place.  2  Piatt  on  Leases, 
131,  132,  and  cases  cited.  But  the  same  reasons  never  existed  for 
apportioning  rent  on  the  principle  of  time  where  the  tenant  was 
bound  to  pay  it  at  stated  periods.  The  sum  accruing  between  each 
of  the  times  of  payment  was  a  single  entire  debt,  and  was  due  only 
on  the  condition  precedent  of  the  tenant  being  entitled  to  enjoy  the 
premises  for  the  time  in  respect  to  which  it  was  payable.  If,  there- 
fore, a  person  having  a  life  estate,  with  no  power  to  make  a  lease  to 
continue  longer  than  during  his  life,  should  make  a  lease  for  years, 
reserving  rent  half  yearly,  and  should  die  in  the  middle  of  a  half 
year,  the  rent,  according  to  the  principles  of  the  common  law,  would 
be  lost  for  the  half  of  a  year.  The  executor  or  representative  of 
the  lessor  could  not  recover  it,  because  by  the  nature  of  the  contract 
the  lessor  was  not  entitled  to  it  except  in  the  sums  and  at  the  times 
specified  in  the  lease.  His  successor  in  the  reversionary  estate  could 
not  claim  it  for  the  additional  reason  that  the  reversion  was  not  his 
until  the  lease  itself  was  terminated  by  the  death  of  the  life  tenant 
who  gave  it.  If  the  lessee  continues  to  hold  afterwards,  such  hold- 
ing is  necessarily  under  some  new  contract  with  the  party  on  whom 
the  estate  has  devolved.  Woodfall's  Land,  and  Ten.  248;  1  Salk., 
65;  1  P.Wm.  392;  2  Id.,  501,  502;  1  Man.  &  Gr.,  589,  13  N.  H.,  343; 
11  Mass.,  493.' 

If,  however,  the  lease  continues,  although  intermediate,  the  days 
of  payment,  the  reversion  passes  wholly  into  new  hands;  the  obliga- 
tion of  the  lessee  to  pay  rent  continues  also.  Thus,  in  the  middle  of 
a  quarter  the  lessor  may  convey  the  whole  estate  which  is  under  the 
lease,  or  it  may  be  sold  under  execution  or  mortgage,  or  he  may  die 
leaving  it  to  descend  to  his  heirs,  or  he  may  dispose  of  it  by  will. 
The  lease  itself  is  unaffected  by  these  events,  and  the  rent  is,  there- 
fore, payable  as  though  they  did  not  occur;  but  it  is  payable  only  in 
the  sums  and  at  times  specified  in  the  demise.  The  reversion  may 
be  transmitted  to  a  new  owner  during  a  period  between  the  days  of 
payment,  but  such  an  event  does  not  divide  the  obligation  of  the 
tenant.  The  accruing  rent  follows  the  reversion  wheresoever  that 
goes,  and  neither  the  former  owner  nor  his  representative  can  recover 
any  portion  of  it.  Being  recoverable  only  in  a  single  sum  and  not 
until  the  prescribed  day  of  payment,  the  common  law  gives  it  to  him 
who  is  the  reversioner  at  that  time,  and  no  case  can  be  found  where 
a  court  of  equity  has  adopted  a  different  rule.  Says  Mr.  Woodfall, 
Law  of  Landlord  and  Tenant,  248,  "  at  common  law  rent  cannot 
be  apportioned,  but  the  reversioner  becomes  entitled  to  the  accruing 
rent  from  the  rent  day  antecedent  to  the  decease  of  the  tenant  for 
1  See  for  present  New  York  rule,  §  192  R.  P.  Law.  —  Ed. 


414  USE   OF    LAND.  [PT.  III.  CH.  II. 

life,  whose  representative  was  entitled  -to  the  arrearages  due  at  some 
rent  day  before  the  death  of  the  testator,  or  the  intestate;  for  the 
law  does  not  apportion  rent  in  point  of  time  nor  does  equity."  See, 
also,  2  Greenleaf's  Cruise,  p.  116,  §§  44,  45,46,  Ex  parte  Smyth,  1 
Swanst.  3.37,  and  note,  and  other  cases  cited,  supra.  It  is  true  there 
are  in  the  English  books  some  cases  of  a  peculiar  kind,  where  on  the 
death  of  a  tenant  for  life  before  the  day  of  paying  rent  for  the  cur- 
rent quarter  or  other  period,  the  rent  has  been  divided  between  his 
representative  and  the  remainderman;  but  these  are  all  cases  in 
which  the  lease  terminated  on  the  decease  of  the  life  tenant;  either 
because  he  had  no  power  to  lease  so  as  to  affect  the  remainderman, 
or  because  if  such  a  power  was  given  to  him  it  had  been  defectively 
executed,  and  the  lessee,  holding  the  premises  until  the  rent  day 
voluntarily  paid  the  whole  to  the  person  who  succeeded  to  the  estate. 

In  all  the  cases  of  this  kind  the  lessee  was  not  at  common  law 
bound  to  pay  at  all  for  so  much  of  the  time  since  the  last  rent  day, 
as  had  elapsed  before  the  death  of  the  tenant  for  life,  but  having 
conscientiously  paid  for  the  whole  time,  the  person  who  took  the 
estate  in  remainder  was  held  by  the  courts  of  equity  to  have  received 
for  the  use  of  the  executor,  of  his  life  tenant,  so  much  of  the  rent 
as  accrued  beyond  his  decease.  Ex  parte  Smyth,  supra;  Paget  v.  Gee, 
1  Ambler,  199.  In  these  instances  the  rent  actually  paid  was 
apportioned  or  divided  on  the  principle  of  time;  but  cases  of  this 
kind  have  no  tendency  to  show  that  such  an  apportionment  can  be 
made  when  the  lease  remains  as  before,  notwithstanding  a  change 
of  parties  entitled  to  the  rents  takes  place  intermediate  the  rent 
days.  The  lessee  on  that  case  is  bound  to  pay  for  the  whole  time, 
and  the  reversioner,  or  remainderman,  takes  the  rent  as  an  entire 
sum  due  to  him    by  the  terms  of  the  contract. 

The  well  ascertained  rules  of  the  common  law  are,  therefore, 
opposed  to  the  claim  of  the  defendant  to  retain  any  portion  of  the 
rents  received  by  him  for  the  quarter  during  which  his  testator,  the 
life  tenant,  died.  The  leases  were  not  determined  by  that  event, 
and  the  plaintiffs,  who  as  remaindermen  succeeded  to  the  reversion, 
were  entitled  to  the  whole  of  those  rents.  It  has  also  been  observed 
that  the  courts  of  equity  have  never  departed  from  the  rule  of  law 
on  this  subject. 

It  seems  hardly  necessary  to  say  now  that  there  is  no  legislation 
of  this  State  which  the  defendant  can  invoke  in  support  of  his  claim.1 
In  England,  one  of  the  rules  of  law  in  regard  to  apportionment  of 
rent  was  abrogated  by  an  act  of  Parliament,  passed  in  the  reign  of 

1  Bui  the  latesl  New  York  statute  has  adopted  the  English  rule.  N.  Y.  Code 
Civ.  Pro,  .'  2720.  —  Ed. 


I.   i.]  BY   HOLDER   OF   PARTICULAR   ESTATE.  415 

George  II.  That  statute,  2  Geo.  II.,  c.  19,  after  noticing  that  by 
the  existing  rule  rents  were  frequently  lost,  where  a  lessor  having 
only  a  life  estate  died  before  or  on  the  day  when  it  would  be  paya- 
ble, declared  that  when  any  tenant  for  life  should  happen  so  to  die, 
his  executor  or  administrator  might  recover  the  whole  rent  in  arrear, 
in  case  such  death  took  place  on  the  day  fixed  for  payment,  or  if  it 
happened  before  that  day  then  a  proportion,  according  to  time,  mak- 
ing all  just  allowances,  etc.  That  legislation,  with  some  change  in 
phraseology,  has  been  followed  in  this  State.  Our  statute,  i  R.  L. 
438;  1  R.  S.  747,  §  22,  provides  that  when  a  tenant  for  life,  who 
shall  have  demised  lands,  shall  die  before  the  day  when  any  rent  is 
to  become  due,  his  executors  may  recover  "  the  proportion  of  rent 
which  accrued  before  his  death."  In  the  case  provided  for,  there- 
fore, rent  can  be  apportioned  in  opposition  to  the  rule  of  the  com- 
mon law,  and  a  recovery  had,  where,  but  for  the  statute,  the  rent 
would  be  lost.  But  the  statute  does  not  include  the  present  case. 
The  leases  in  question  were  not  given  by  a  tenant  for  life,  but  by 
the  owner  of  the  fee,  and  the  disputed  rent  was  not  liable  to  be  lost, 
because  the  plaintiffs,  succeeding  to  the  reversion,  could  recover  the 
whole  of  it  by  action  founded  on  the  very  leases  themselves.  The 
English  statute,  like  ours,  was  enacted  to  remedy  the  apparent 
injustice  of  the  rule  which  absolved  a  lessee  from  paying  any  rent, 
where  his  interest  was  determined  between  the  rent  days  by  the 
expiration  of  a  life  estate  on  which  the  lease  depended.  More 
recent  legislation  in  England  has  gone  still  further.  The  statute  of 
4  W.  IV.,  c.  22,  after  reciting  that  by  law  rents  due  at  fixed  periods 
were  not  apportionable,  and  after  reciting  the  inconvenience  of  that 
rule,  proceeds  to  declare  that  all  rents  made  payable  at  such  periods 
under  any  instrument  executed  after  the  passing  of  the  act,  should 
be  apportioned  so  that  on  the  termination,  by  death  or  any  other 
means,  of  the  estate  of  the  person  entitled  to  the  rents,  such  person, 
or  his  representative,  should  have  a  portion  of  such  rents,  according 
to  the  time  elapsed  since  the  last  period  of  payment.  By  a  further 
provision,  the  entire  rent  is  to  be  received  and  recovered  from  the 
tenant,  by  the  person  who  would  be  entitled  to  recover  it  if  the  act 
had  not  been  passed,  and  is  to  be  held  by  him  subject  to  apportion- 
ment, which  can  be  enforced  against  him  by  suit  at  law,  or  in  equity. 
It  will  be  seen  that  this  statute  recognizes  the  old  rule,  while  it 
declares  a  new  one  for  future  leases,  and  that  it  also  carefully  pro- 
tects the  tenant  against  more  than  one  action  for  the  entire  rent. 
We  have  no  such  legislation  in  this  State.  If  we  should  adopt  the 
principle  of  that  statute,  in  regard  to  apportionment,  without  legisla- 
tive interference,  we  should  not  only  change  the  existing  law,  but 


416  USE  OF  LAND  BY  PARTICULAR  TENANT.       [PT.  III.  CH.  II. 

the  change  must  be  made  without  the  protection  to  tenants  which 
the  English  statutes  secures.  If  we  declare  rent  to  be  apportionable 
in  cases  like  the  present,  it  will  follow,  according  to  our  rules  of 
pleading  and  practice,  that  each  party  entitled  to  a  share  may  sue 
the  tenant  to  recover  it.  To  illustrate,  if  the  defendant  has  no 
interest  in  the  rents  now  in  question,  then  he  cannot  retain  the 
portion  in  his  hands.  If  he  has  an  interest,  then  to  that  extent  he 
could,  under  our  practice,  recover  so  much  as  belonged  to  him,  by 
suit  against  the  tenants  if  they  had  not  paid  these  rents.  And  I 
think  that  even  a  notice  to  the  tenants  of  his  claim  to  a  share,  would 
take  away  from  them  their  right  to  pay  the  entire  sum  to  the  persons 
who,  as  remaindermen,  would  be  entitled  to  the  other  share.  To 
conclude  on  this  point,  we  find  that  the  rule  of  law  denying  appor- 
tionment in  a  case  like  this,  has  never  been  shaken;  and  whatever 
may  be  the  arguments  founded  in  justice  or  expediency,  in  favor  of 
a  different  rule,  we  think  those  arguments  should  be  addressed  to 
the  Legislature,  rather  than  to  the  courts. 

The  life  estate  and  the  remainder  in  fee,  between  which  the 
apportionment  is  claimed,  were  created  by  the  will  of  Mr.  Coe,  by 
whom  the  leases  were  given,  and  it  has  been  insisted  that  we  ought  to 
construe  the  will  favorably  to  his  widow,  and  on  that  ground  allow  the 
apportionment  to  take  place.  But  we  see  no  room  for  any  construc- 
tion which  will  take  the  case  out  of  the  general  rule  of  law.  Of 
course,  the  life  estate  given  was  intended  by  the  testator  as  a  part,  and 
perhaps  the  principal  part,  of  the  provision  made  for  his  widow,  but 
it  was  given  simply  as  a  life  estate,  with  remainder  over  to  the  plain- 
tiffs; and  it  does  not  appear  even  to  have  been  in  lieu  of  dower  in 
any  other  real  estate  which  he  may  have  owned.  The  widow  became 
entitled  to  the  rents  as  incident  to  her  life  estate  in  the  reversion; 
but  as  that  estate  terminated  between  the  periods  for  payment,  the 
rent  accruing,  but  not  yet  due,  became  at  once  annexed  to  the 
estate  of  those  who  succeeded  her  in  such  reversion.  No  part  of  it 
could  be  severed  at  that  point  of  time.  To  make  an  exception  in 
such  a  case,  to  the  general  rule,  would  be  virtually  to  deny  the 
existence  of  the  rule  altogether.  It  may  be  well  to  observe  that 
rents  are  unlike  annuities,  and  unlike  the  interest  of  money.  They 
issue  out  of  land,  and  are  a  part  of  the  land.  They  are  less  capable 
of  division,  or  apportionment,  according  to  a  precise  measure  of 
e,  because  the  value  of  the  tenant's  enjoyment  may  be  quite 
dim  rent  at  different  periods  of  the  year,  and  the  value,  moreover, 
may  very  much  depend  on  the  enjoyment  for  the  full  time  specified 
in  the  lease.     *     *     *  ,  Judgment  affirmed.1 

1  Three  of  the  eight  judgi     di     ented;  Clarke,  J.,  wrote  the  dissenting  opinion, 


I.  2.]  ESTOVERS.  417 

2.   Estovers. 

SMITH  v.  JEWETT. 

40  New  Hampshire,  530.  —  i860. 

Bellows,  J. — The  plaintiffs  in  this  case  seek  for  relief  on 
account  of  waste  already  committed;  for  an  injunction  to  stay  waste 
in  the  future;  for  a  decree  of  forfeiture  for  breach  of  condition  in 
neglecting  to  maintain  the  plaintiff,  Sarah  F.  Jewett;  for  an  account 
of  the  personal  property  received  by  said  Nancy  under  the  will,  with 
the  income  thereof,  and  of  the  real  estate,  and  that  proper  decrees 
be  made  to  secure  and  preserve  it  for  the  benefit  of  the  persons 
interested;  and  also  that  the  said  Nancy,  having  become  incapable 
of  discharging  the  duties  of  the  trust,  be  removed,  and  another  trus- 
tee be  appointed;  the  bill  also  prays  that  the  said  Nancy  be  com- 
pelled to  maintain  the  said  Sarah,  and  to  reimburse  the  sums  of 
money  expended  by  her,  the  said  Sarah,  for  her  own  maintenance, 
by  reason  of  the  neglect  of  the  said  Nancy. 

The  position  of  Nancy  Jewett  being  that  of  tenant  for  life,  she  is 
entitled  to  take  from  the  land  a  reasonable  quantity  of  wood  for 
fuel,  for  the  supply  of  herself  and  family  upon  the  premises,  to  be 
cut  in  a  prudent  and  proper  manner.  She  may  also,  we  think, 
include  a  reasonable  supply  for  necessary  servants  employed  to 
carry  on  the  farm,  and  living  in  the  same  or  another  house  upon  the 
premises,  and  it  can  make  no  difference  in  this  respect  whether  such 
servants  are  paid  by  fixed  wages,  or  by  a  share  of  the  crops,  as  ten- 
ants at  the  halves.  To  carry  on  the  farm,  servants  may  doubtless 
be  employed  and  reasonable  fuel  may  be  used  for  their  suitable 
accommodation,  and  it  can  in  no  wise  affect  the  remainderman  or 
reversioner  whether  the  persons  so  employed  are  paid  by  wages  in 
money  or  a  share  of  the  crops,  the  real  question  being  whether  the 
tenant  has  used  more  than  a  reasonable  quantity  of  wood  for  such 

discussing  the  origin  and  history  of  the  rule.  After  some  arguments  of  a  tech- 
nical character,  he  concludes:  "But  I  am  inclined  to  decide  this  case  upon 
broader  grounds;  the  inapplicability  of  the  rule  contended  for  to  the  condition 
of  society  here,  the  fact  that  it  has  never  been  deliberately  and  expressly  recog- 
nized, and  its  obvious  hardships  and  injustice.  There  is  not  a  particle  of  reason, 
founded  upon  abstract  principles  of  justice,  or  arising  from  considerations  of 
convenience  or  policy,  why  rents,  in  cases  of  this  nature,  should  not  be  appor- 
tioned; and  nothing  but  the  pressure  of  an  indubitable  current  of  authority 
should  constrain  us  to  recognize  so  anomalous  and  so  technical  a  rule.  When 
I  add  these  considerations  to  the  manifest  intention  of  the  testator,  I  have  no 
hesitation  in  saying  that  the  judgment  of  the  Superior  Court  of  Buffalo  should 
be  reversed."  —  Ed. 

LAW  OF  PROP.   IN  LAND  —  27 


418         USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CH.  II. 

purposes.  The  tenant  for  life  may  lawfully  assign  his  interest  to 
another,  who  will  have  the  same  rights.  Fuller  v.  Wager,  7  N.  H. 
342.  There  can,  therefore,  be  no  objection  in  this  case,  that  wood 
was  used  by  a  tenant  of  the  said  Nancy  Jewett.  In  Gardner  v. 
Decriag,  1  Paige  Ch.  573,  it  was  held  that  a  tenant  in  dower  may 
take  reasonable  firewood  not  only  for  the  house  which  she  herself 
occupies,  but  for  the  house  of  her  servant  who  cultivates  the  land, 
though  living  upon  another  tract  adjoining.  Tayl.  Landl.  &  Ten., 
sec.  352;  Miles  v.  Miles,  32  N.  H.  147;  Webster  v.  Webster,  33 
N.  H.  19;  4  Kent  Com.  80;  1  Gr.  Cru.  104;  Paddleford  v.  Paddle- 
ford,  7  Pick.  152. 

In  the  case  before  us  the  bill  charges  that  the  said  Nancy  had 
leased  the  farm  and  part  of  the  house  to  one  Bean,  with  a  right  to 
cut  firewood  on  the  farm,  and  that  he  has  done  so  for  his  use,  and 
that  the  said  Nancy  has  also  supplied  her  own  fire  with  fuel  from  the 
same  source  at  the  same  time.  The  answer  denies  any  waste,  but 
admits  the  lease  to  Bean,  alleging  that  the  expense  of  hiring  hands 
to  cultivate  the  farm  was  so  great  it  was  thought  best  so  to  lease  it, 
and  admits  also  that  in  cold  weather  said  Bean  used  wood  for  a 
separate  fire.  But  it  is  not  alleged  in  the  bill,  nor  does  it  appear  in 
the  answer,  that  an  unreasonable  quantity  was  used;  therefore  the 
plaintiffs  are  not  entitled  to  a  decree  upon  that  ground,  and  so  also 
in  respect  to  the  charge  of  bad  husbandry,  which  is  denied  by  the 
answer. 

As  to  the  prayer  for  a  decree  of  forfeiture  for  breach  of  condition, 
by  neglecting  to  maintain  the  plaintiff,  Sarah  F.  Jewett,  it  may  be 
regarded  as  an  established  rule  that  a  court  of  equity  will  not 
enforce  either  a  penalty  or  a  forfeiture,  and  therefore  it  is  contrary 
to  the  uniform  course  of  the  court  to  lend  its  aid  to  divest  an  estate 
for  breach  of  condition  subsequent.  2  Story  Eq.,  sees.  1315,  1319, 
and  authorities  cited;  Livingston  v.  Tompkins,  4  Johns.  Ch.  431;  4 
Kent  Com.  (9th  ed.),  147;  Story,  Eq.  PI.,  sec.  521.     *     *     * 

In  regard  to  the  application  for  an  account  of  the  property  and 
the  income  thereof,  we  see  no  occasion  to  decree  it.  Under  some 
circumstances,  where  there  is  cause  to  fear  that  the  property  will  be 
squandered  or  diverted  to  other  than  the  legitimate  uses,  a  bill  with 
proper  parties  and  in  the  .nature  of  a  bill  quia  timet  may  be  main- 
tained. But  that  is  not  the  character  of  the  proceedings  here,  nor 
arc  these  parties  entitled  to  an  account  of  the  income  of  the  prop- 
erty in  the  hands  of  the  said  Nancy  Jewett.  By  the  will  the  whole 
property  is  given  to  the  widow  during  her  life,  upon  the  condition 
that  she  maintain  the  two  daughters  while  unmarried.  This  gives 
her  an  (state  lor  life  in   the  property,  both  real  and  personal,  as  in 


I.  2.]  FIXTURES   AND    IMPROVEMENTS.  419 

Miles  v.  Miles,  and  Webster  v.  Webster,  before  cited.  And  the 
estate  at  once,  on  the  death  of  the  testator,  vested  in  her,  the  con- 
dition annexed  to  the  gift  having  nothing  of  the  character  of  a  con- 
dition precedent.  As  such  tenant  for  life  she  was  entitled  abso- 
lutely to  the  income  of  the  property  and  reasonable  estovers;  sub- 
ject only  to  the  charge  of  the  maintenance  of  the  two  daughters. 
And,  on  the  other  hand,  whether  the  income  was  sufficient  or  not, 
she  was  bound  to  furnish  such  maintenance  —  the  property  being 
held  by  her  upon  that  condition  or  subject  to  that  charge  —  and 
having  accepted  the  gift,  she  may  be  compelled  to  comply  with  the 
condition,  by  a  resort  to  equ'ty  or  by  action  at  law.  Pickering  v. 
Pickering,  6  N.  H.  120;  Veasey  v.  Whitehouse,  10  N.  H.  409.  Such 
would  have  been  the  law  had  the  property  been  wholly  unproduc- 
tive. The  plaintiffs,  therefore,  cannot  compel  the  defendant, 
Nancy  Jewett,  to  come  to  an  account  of  the  rents  and  profits  of  the 
estate  upon  any  grounds  disclosed  in  these  proceedings.     *     *     * 

The  bill  must  be  dismissed.1 


3.   Fixtures   and  Improvements. 

MERRITT  v.   SCOTT. 

81  North  Carolina,  385.  —  1879. 

Smith,  C.  J.  —  The  tract  of  land  described  in  the  complaint  was, 
in  1S42,  conveyed  by  James  Merritt,  the  owner,  to  his  son,  John 
Merritt,  in  trust  for  another  son,  Francis  Merritt,  for  life,  remainder 
to  his  wife,  Deborah,  for  life  or  widowhood,  and  with  a  further  limi- 
tation over  at  her  death  or  marriage,  to  the  children  of  Francis  then 
living.  John  Merritt,  the  trustee,  died  intestate,  leaving  children, 
who  with  the  said  Deborah  are  the  plaintiffs  in  this  action.  The 
life  tenant,  Francis,  who  is  also  dead,  in  his  lifetime  conveyed  his 
estate  to  one  John  Cox,  and  after  his  death  his  administrator,  under 
proceedings  in  the  probate  court  and  with  license  therefor,  sold  and 
conveyed  the  land  to  the  defendant,  Edward  Scott.  The  object  of 
the  suit  is  to  recover  the  land  for  the  use  of  said  Deborah,  and  dam- 
ages for  its  detention  since  the  death  of  Francis  Merritt. 

No  issue  as  to  title  is  made  and  in  the  inquiry  before  the  jury  as 
to  the  damages,  the  defendant  offered  to  show  in  support  of  the 
defense  set  up  in  his  answer,  that  valuable  improvements  had  been 
made  on  the  lands  both  by  himself  and  the  preceding  occupant,  in 

1  See  other  cases  on  this  topic  under  "  Waste,"  infra  pp.  .  —  Ed. 

2  See  pp.  310-338,  supra.     For  law  as  to  manure,  pp.  338-347,  supra.  — Ed. 


420        USE   OF   LAND    JiV   PARTICULAR   TENANT.       [PT.  III.   CII.  II. 

the  erection  of  useful  buildings,  and  by  ditching,  fencing,  and  manur- 
ing, whereby  the  value  of  the  land  had  been  greatly  enhanced.  The 
evidence  on  objection  from  plaintiff  was  excluded,  and  the  exception 
to  this  ruling  of  the  court  is  the  only  point  presented  in  the  appeal. 

Under  instructions,  the  jury  assessed  the  damages  from  August 
1 8th,  1S73,  which  we  suppose  to  be  the  date  of  the  determination  of 
the  first  life  estate,  at  the  rate  of  one  hundred  dollars  per  annum. 
Whether  these  improvements  or  any  of  them  were  made  during 
the  years  for  which  the  defendant  is  charged  for  rent,  does  not 
appear. 

We  think  it  clear  that  improvements  of  any  kind  put  upon  land  by 
a  life  tenant  during  his  occupancy,  constitute  no  charge  upon  the 
land  when  it  passes  to  the  remainderman.  He  is  entitled  to  the 
property  in  its  improved  state  without  deduction  for  its  increased 
value  by  reason  of  good  management  or  the  erection  of  buildings  by 
the  life  tenant,  for  the  obvious  reason  that  the  latter  is  improving 
his  own  property  and  for  his  own  present  benefit.  This  proposition 
is  too  plain  to  need  the  citation  of  authority. 

For  subsequent  rents  and  uses  he  is  entitled  to  have  the  amount 
reduced  by  those  improvements.  Suppose,  while  holding  over,  the 
defendant  had  by  such  improvements  as  in  the  answer  are  alleged 
to  have  been  made,  rendered  the  land  more  valuable,  as  it  comes  to 
the  remainderman,  would  it  not  be  reasonable  he  should  pay  a 
smaller  rent  than  if  nothing  of  the  kind  had  been  done?  So  if  no 
repairs  were  made  and  the  buildings  had  gone  to  decay,  and  by  mis- 
management and  bad  cultivation,  the  farm  had  been  abused  and  its 
value  impaired,  a  full  and  larger  rent  might  justly  be  required  of  the 
tenant. 

The  evidence  of  such  improvements  as  were  made  by  the  defend- 
ant, after  his  estate  expired,  and  he  became  chargeable  with  rent, 
ought  to  have  been  admitted  and  considered  by  the  jury  in  measur- 
ing the  value  of  the  rent,  and  in  mitigation  of  damages.  The  evi- 
dence was  competent  for  this  purpose  only,  and  not,  in  case  the 
improvements  were  worth  more  than  the  rents,  to  constitute  a 
counterclaim  for  the  excess. 

The  rule  is  thus  stated  by  Mr.  Tyler:  "  The  defendant  should  be 
allowed  the  value  of  his  improvements  made  in  good  faith,  to  the 
extent  of  the  rents  and  profits  claimed,  and  this  is  the  view  of  the 
subject  which  is  supported  by  the  authorities."     Tyler  on  Eject.  849. 

Referring  to  the  action  for  mesne  profits  which  might  be  brought 
after   a   recovery   in   ejectment,    Ruffin,    C.    J.,  uses  this  language: 

The  jury  can  then  make  fair  allowances  out  of  the  rents,  and  to 
their   extent,  for   permanent   improvements   honestly   made   by  the 


I.  2.]  FIXTURES,  ETC.  42T 

defendant,   and  actually  enjoyed  by  the   plaintiff,  taking  into  con- 
sideration all  the  circumstances."     Dowdv.  Faucett,  4  Dev.  92. 

Thus  far  the  jury  should  have  been  allowed  to  hear  and  consider 
the  evidence,  in  assessing  the  sum  which  the  defendant  should  pay  for 
the  use  of  the  premises,  for  it  is  quite  apparent  the  improvements 
were  made  in  good  faith  and  will  inure  to  the  plaintiff's  benefit. 

As  a  counterclaim  and  to  charge  the  land  therewith  when  the 
estate  in  remainder  is  vested  in  Deborah,  the  evidence  is  totally 
inadmissible  under  the  act  of  February  8th,  1872.  Bat.  Rev.  ch.  17, 
§  262^,  and  the  sections  following.  The  act  is  not  applicable  to  a 
case  like  this,  but  to  independent  and  adversary  claims  of  title,  and 
was  intended  to  introduce  a  just  and  reasonable  rule  in  regard  to 
them. 

The  owner  of  land  who  recovers  it  has  no  just  claim  to  anything 
but  the  land  itself  and  a  fair  compensation  for  being  kept  out  of 
possession;  and  if  it  has  been  enhanced  in  value  by  improvements 
made  under  the  belief  that  he  was  the  owner,  the  increased  value  he 
ought  not  to  take  without  some  compensation  to  the  other.  This 
obvious  equity  is  established  by  the  act.  But  to  enjoy  its  benefits, 
a  party  after  judgment  must  file  his  petition  and  ask  to  be  allowed 
for  his  permanent  improvements,  "  over  and  above  the  value  of  the 
use  and  occupation  of  such  land." 

If  the  court  is  satisfied  of  the  probable  truth  of  the  allegation, 
and  the  case  is  one  to  which  the  statute  applies,  and  this  must  be 
preliminarily  determined,  it  may  suspend  execution  and  cause  a  jury 
to  be  impaneled  "  to  assess  the  damages  of  the  plaintiff  and  the 
allowance  to  the  defendant  "  for  his  permanent  improvements,  "  over 
and  above  the  value  of  the  use  and  occupation  of  the  land." 

This  course  has  not  been  pursued,  and  the  evidence  is  offered  in 
the  trial  without  any  previous  application  to  the  judge,  or  his  assent 
being  obtained.  But  having  the  informality,  we  are  not  prepared  to 
say  the  judge  was  in  error  in  disallowing  the  evidence  for  the  pur- 
pose of  establishing  a  counterclaim  for  the  excess.  The  defendant 
is  entitled  to  have  his  claim  for  improvements  made  since  the 
expiration  of  his  own  estate,  considered  by  the  jury  in  estimating 
the  value  of  the  rents,  under  appropriate  instructions  from  the 
court  in  relation  thereto.  For  this  error  in  wholly  rejecting  the  evi- 
dence there  must  be  a  venire  de  novo,  and  it  is  so  ordered. 

Venire  de  novo. 


422         USE   OF   LAND   BY   PARTICULAR   TENANT.       [PT.  III.  CH.  II. 

II.  General  restrictions  upon  tenant's  use. 

i.  The  Maxim  "Sic  utere  tuo  ut  alienum non laedas." 

BISHOP  v.  BANKS. 

33  Connecticut,  118.  —  1S65. 

[Reported  herein  at  p.  382.]' 


III.  Special  restrictions  protecting  the  inheritance  for  general  owner. 
Waste. 

1.   Nature  and   Kinds  of  Waste. 

a.    Voluntary  ivaste. 

CANNON  v.   BARRY. 

59  Mississippi,  289.  —  1881. 

[Reported  herein  at  p.  433.] 


b.  Permissive  waste. 

HERNE  v.  BEMBOW. 
4  Taunton  (Eng.  C.  P.,  etc.),  764.  —  1813. 

The  plaintiff  declared  in  case  in  the  nature  of  waste,  and  alleged 
certain  buildings  in  the  defendant's  occupation  to  be  ruinous,  pros- 
trate, and  in  decay  for  want  of  needful  and  necessary  reparations. 
There  was  also  a  count  for  obstructing  a  way.  The  defendant  suf- 
fered judgment  by  default.  The  premises  were  demised  by  the 
plaintiff  to  the  defendant  by  lease,  which  contained  no  covenant  to 
repair.  Upon  the  execution  of  a  writ  of  inquiry,  the  under-sheriff 
directed  the  jury  to  inquire  what  sum  it  would  take  to  put  the 
premises  into  tenantable  repair.  The  jury,  however,  rejected  that 
rule,  and  gave  very  small  damages. 

Shepherd,  Sergt.,  now  moved  to  set  aside  the  inquisition,  and 
that  the  case  might  be  submitted  to  another  jury,  contending  that 
the   damages   ought   to  have  been   the  sum   sufficient  to  enable  the 

1  This  (  ase  is  an  illustration  of  the  application  of  the  maxim  to  an  estate  in 
fee,  but  ilii  maxim  and  ili<-  rules  relating  to  the  preservation  of  public  health 
apply  as  well  to  any  mode  of  occupation  of  land.  —  Ed. 


III.  i.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     423 

defendant  to  keep  up  the  premises  in  as  good  repair  as  they  were 
in  when  the  defendant  took  them. 

Per  Curiam.  — Whatever  duties  the  law  casts  on  the  tenant,  the 
law  will  raise  an  assumpsit  from  him  to  perform,  if  there  be  no  cove- 
nant in  his  lease  for  the  performance,  but  that  is  a  very  different 
case  from  a  declaration  framed  in  tort  like  this.  If  this  action 
could  be  maintained,  a  lessor  might  declare  in  case  for  not  occupy- 
ing in  an  husbandlike  manner,  which  cannot  be.  *  The  facts  alleged 
are  permissive  waste;  an  action  on  the  case  does  not  lie  against  a 
tenant  for  permissive  waste.  Countess  of  Shrewsbury  s  Case,  5  Co.  13. 
If,  therefore,  we  were  to  grant  this  motion,  the  defendant  would 
meet  the  plaintiff  in  a  manner  he  would  not  like. 

Rule  refused. 


FERGUSON  v. 


2  Espinasse  (Eng.  K.  B.),  590.  —  1797. 

Action  to  recover  damages  for  suffering  an  house  of  the  plaintiff 
to  be  out  of  repair. 

The  case  on  the  part  of  the  plaintiff  was,  that  the  defendant  had 
rented  an  house  of  him,  as  tenant  at  will,  at  a  rent  of  ^31  per 
annum,  which  he  had  quitted.  After  the  defendant  had  given  up 
the  possession,  the  house  was  found  to  be  very  much  out  of  repair; 
and  the  plaintiff  had  an  estimate  made  of  the  sum  necessary  to  put 
it  into  complete  and  tenantable  repair,  which  sum  he  sought  to 
recover  in  the  present  action. 

Lord  Kenyon  said  it  was  not  to  be  permitted  to  plaintiff  to  go 
for  the  damages  so  claimed.  A  tenant  from  year  to  year  is  bound 
to  commit  no  waste,  and  to  make  fair  and  tenantable  repairs,  such 
as  putting  in  windows  or  doors  that  have  been  broken  by  him,  so 
as  to  prevent  waste  and  decay  of  the  premises;  but  in  the  present 
case  the  plaintiff  has  claimed  a  sum  for  putting  on  a  new  roof  on  an 
old  worn-out  house;  this,  I  think,  the  tenant  is  not  bound  to  do, 
and  that  the  plaintiff  has  no  title  to  recover  it. 


In  re  CARTWRIGHT. 

41  Chancery  Division  (Eng.),  532.  —  1889. 

Adjourned  Summons.  — John  Cartwright,  who  died  in  1850,  by 
his  will,  dated  in  that  year,  devised  land  in  the  county  of  Suffolk 
unto  and  to  the  use  of  his  daughter  Mary  Anne  Cartwright  and  her 


424        USE    OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.   CH.  II. 

assigns  for  and  during  the  term  of  her  natural  life,  and  from  and 
immediately  after  her  decease  to  the  use  of  her  children,  if  any,  in 
manner  therein  mentioned,  and  if  all  such  children  should  have 
departed  this  life  without  issue  at  the  time  of  the  decease  of  his 
daughter  and  on  failure  of  her  issue,  he  devised  the  land  to  the  de- 
fendant Newman,  his  heirs  and  assigns,  forever.  The  will  con- 
tained no  provisions  touching  the  liability  of  the  testator's  daughter 
for  waste. 

Mary  Anne  Cartwright  died  a  spinster  on  the  15th  of  December, 
1888,  and  the  plaintiff  Avis  was  her  executor.  At  the  time  of  her 
death  the  buildings,  gates  and  fences  on  the  devised  land  were  in  a 
dilapidated  condition,  owing  to  the  necessary  repairs  not  having 
been  done,  and  the  probable  cost  of  the  works  necessary  to  place 
the  property  in  repair  was  estimated  by  a  survey  or  to  be  ^166  12s. 
gd.  The  defendant  claimed  this  sum  from  the  plaintiff,  who,  on 
the  28th  of  March,  1889,  took  out  an  originating  summons  to  have 
it  determined  whether  any  and  what  sum  should  be  allowed  and 
paid  to  the  defendant  as  compensation  in  respect  of  waste  suffered 
by  Mary  Anne  Cartwright  during  her  estate  in  the  premises. 

At  the  hearing,  by  the  direction  of  the  court,  the  summons  was 
amended  by  claiming  administration  of  the  estate  of  Mary  Anne 
Cartwright. 

Ingpen,  for  the  plaintiff,  stated  the  case. 
IV.  C.  Druce,  for  the  defendant. 

As  legal  remainderman  in  fee  the  defendant  is  entitled  to  com- 
pensation by  way  of  damages  for  permissive  waste  by  the  deceased 
tenant  for  life.  No  doubt  it  is  well  established  that  equity  will  not 
interfere  by  injunction  in  cases  of  permissive  waste  by  tenants  for 
life,  but  the  question  whether  or  not  an  action  for  damages  for  per- 
missive waste  can  be  maintained  against  a  tenant  for  life  upon 
whom  no  express  duty  to  repair  is  imposed  by  the  instrument  which 
creates  the  estate,  rests  upon  a  different  footing,  and  was  treated  by 
Lush,  J.,  in  Woodhouse  v.  Walker,  5  Q.  B.  D.  404,  407,  as  an  open 
question. 

[Kay,  J.:  Can  you  show  me  a  case  in  which  a  court  of  common 
law  has  given  damages  in  such  an  action?] 

No  such  case  can  be  shown,  but  principle  and  authority  are  in 
favor  of  the  existence  of  such  aright  of  action.  Before  the  statutes 
of  Marlbridge,  52  Hen.  3,  and  of  Gloucester,  6  Edw.  1,  c.  8,  though 
an  action  for  waste  lay  against  a  tenant  in  dower  or  by  the  curtesy 
(whose  estates  are  created  by  the  law),  it  did  not  lie  against  a  tenant 
for  life  or  years.     Those  statutes  were   passed    to   remedy  the   mis- 


ITI.  i.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     425 

chief,  and  Lord  Coke,  2  Inst.  145,  treats  them  as  extending  to  per- 
missive waste,  saying:  "  For  he  that  suffereth  a  house  to  decay, 
which  he  ought  to  repaire,  doth  the  waste;"  and  there  are  state- 
ments in  the  notes  to  Greene  v.  Cole,  2  Wins.  Saund.  251,  to  the 
same  effect. 

[Kay,  J.:  Lord  Coke's  words  only  include  permissive  waste 
where  there  is  an  obligation  to  repair.  He  says  in  effect  that  where 
the  grantor  imposes  the  obligation  to  repair,  it  is  waste  to  allow  the 
property  to  go  out  of  repair.] 

Lord  Coke's  meaning  is  that  the  obligation  is  imposed  by  the 
statutes.  In  Harnett  v.  Maitland,  16  M.  &  W.  257,  Parke,  B.,  Ibid. 
262,  referred  to  the  notes  to  Greene  v.  Cole  as  an  authority  that  by 
the  statute  of  Gloucester  the  action  was  given  against  a  lessee  for 
years.  It  is  true  that  in  Gibson  v.  Wells,  1  B.  &  P.  N.  R.  290,  Sir 
James  Mansfield,  C.  J.,  expressed  in  general  language  the  opinion 
that  at  common  law  an  action  for  permissive  waste  was  not  main- 
tainable, but  that  was  a  case  of  tenancy  at  will,  and  has  no  applica- 
tion to  tenancy  for  life  or  years.  Heme  v.  Bembow,  4  Taunt.  764, 
and  Jones  v.  Hill,  7  Ibid.  392,  are  also  usually  cited  as  authorities 
to  the  like  purport,  but  those  three  cases  were  commented  on  and 
explained  by  Parke,  B.,  in  delivering  the  judgment  of  the  court  in 
Vellowly  v.  Gower,  11  Ex.  274,  294,  where  he  observed  that  in  the 
first  two  the  court  seemed  to  have  contemplated  the  case  only  of  a 
tenant  at  will,  and  that  in  the  last  no  such  proposition  was  stated 
as  that  a  tenant  for  years  was  not  liable  for  permissive  waste;  and 
he  added:  "  We  conceive  that  there  is  no  doubt  of  the  liability  of 
tenants  for  terms  of  years,  for  they  are  clearly  put  on  the  same 
footing  as  tenants  for  life,  both  as  to  voluntary  and  permissive 
waste,  by  Lord  Coke,  1  Inst.  53,  Harnett  v.  Maitland;  though  the 
degree  of  repairs  required  for  a  tenant  from  year  to  year,  by  mod- 
ern decisions,  is  much  limited."  Yellowly  v.  Gower,  11  Ex.  274. 
was  decided  expressly  on  the  ground  that  a  tenant  for  life  is  liable 
for  permissive  waste,  and  that  there  is  no  distinction  in  this  respect 
between  tenant  for  life  and  tenant  for  years. 

[Kay,  J.,  referred  to  Powys  v.  Blagrave,  4  D.  M.  &  G.  448,  and 
in  particular  to  the  statement  of  the  Lord  Chancellor,  Ibid.  458,  to 
the  effect  that  in  the  case  of  a  tenant  for  life  even  legal  liability 
for  permissive  waste  was  very  doubtful.] 

That  is  a  mere  dictum,  and  his  Lordship  cites  the  very  cases  which 
are  disapproved  in  Yellotvly  v.  Gower.  The  recent  case  of  Barnes 
v.  Dowling,  44  L.  T.,  N.  S.  809,  was  decided  on  purely  equitable 
grounds,  having  no  reference  to  the  right  of  a  legal  remainderman 
in   fee   to    maintain  an  action   for   waste.      Still   more   recently  in 


426    USE  OF  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  CH.  II. 

Davies  v.  Davies,  38  Ch.  D.  499,  Kekewich,  J.,  has  followed  Yellowly 
v.  Goiver,  and  expressly  held  that  a  tenant  for  years  is  liable  for 
permissive  waste. 

[He  referred  also  to  Bacon  v.  Smith,  1  Q.  B.  345,  Tudor's  Lead- 
ing Cases  (Real  Property),  3d  ed.,  pp.  109,  no,  and  3  &  4  Will.  4, 
c.  42,  §  2.] 

Kay,  J.  (Without  calling  upon  counsel  for  the  plaintiff):  —  I  am 
much  obliged  to  you,  Mr.  Druce,  for  your  argument,  to  which  I 
have  listened  with  very  considerable  interest.  The  result  appears 
to  be  this:  Sir  James  Mansfield  was  clearly  of  opinion  that  an  action 
for  permissive  waste  would  not  lie  even  against  a  tenant  for  years. 
That  is  clearly  shown  in  the  case  of  Gibson  v.  Wells,  1  B.  &  P.  N. 
R.  290,  which  was  followed  at  later  dates  in  Heme  v.  Bembow,  4 
Taunt.  764,  and  Jones  v.  Hill,  7  Ibid.  392,  and  in  the  recent  case 
of  Barnes  v.  Dozvling,  in  the  Law  Times  reports;  and  when  the 
point  was  brought  before  the  Lord  Chancellor  (Lord  Cranworth)  in 
the  case  of  Powys  v.  Blagrave,  his  Lordship,  4  D.  M.  &  G.  458,  said 
this:  "  Then  it  was  argued,  independently  of  the  trust,  that  it  is 
the  duty  of  a  tenant  for  life  to  repair —  ' Equitas  sequitur  legem.' 
But  even  legal  liability  now  is  very  doubtful."  And  he  referred  to 
Gibson  v.  Wells,  1  B.  &  P.  N.  R.  290,  and  Heme  v.  Bembow,  4 
Taunt.  764.  His  Lordship  there  decided  most  certainly  that  in 
equity  no  interference  whatever  would  be  made  on  the  ground  of 
permissive  waste  by  a  tenant  for  life.  Now,  in  that  state  of  the 
authorities,  this  consideration  is  to  be  added.  Since  the  statutes 
of  Marlbridge  and  of  Gloucester  there  must  have  been  hundreds  of 
thousands  of  tenants  for  life  who  have  died  leaving  their  estates  in 
a  condition  of  great  dilapidation.  Not  once,  so  far  as  legal  records 
go,  have  damages  been  recovered  against  the  estate  of  a  tenant  for 
life  on  that  ground.  To  ask  me  in  that  state  of  the  authorities  to 
hold  that  a  tenant  for  life  is  liable  for  permissive  waste  to  a  remain- 
derman is  to  my  mind  a  proposition  altogether  startling.  I  should 
not  think  of  coming  to  such  a  decision  without  direct  authority 
upon  the  point.  Such  authority  as  there  is  seems  to  me  to  be 
against  the  contention,  and  in  opposition  to  the  positive  decisions 
in  Gibson  v.  Wells,  Heme  v.  Bemborc,  and  Jones  v.  Hill,  7  Taunt. 
392,  there  are  only  to  be  found  certain  dicta  of  Baron  Parke  and  the 
late  Lord  Justice  Lush  which  seems  to  amount  to  this,  that  the 
words  of  the  statutes  of  Marlbridge  and  Gloucester  are  sufficient  to 
include  the  case  of  permissive  waste,  at  any  rate  where  there  is  an 
obligation  on  the  person  who  has  the  particular  estate  not  to  permit 
waste,  whether  that  obligation  does  or  does  not  exist  at  the  common 
law  in  the  <  ase  of  a  tenant  tor  life-.     But  at  the  present  day  it  would 


III.  i.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     427 

certainly  require  either  an  act  of  Parliament  or  a  very  deliberate 
decision  of  a  court  of  great  authority  to  establish  the  law  that  a 
tenant  for  life  is  liable  to  a  remainderman  in  case  he  should  have 
permitted  the  buildings  on  the  land  to  fall  into  a  state  of  dilapida- 
tion; I  therefore  think  that  this  claim  must  be  disallowed. 


MOORE  v.  TOWNSHEND. 

33  New  Jersey  Law,  284.  —  1869. 

Action  on  the  case  in  the  nature  of  waste  to  recover  damages  for 
permissive  waste.  Verdict  for  the  plaintiff.  A  rule  to  show  cause 
why  a  new  trial  should  not  be  granted  was  allowed.  The  following 
reasons  were  assigned,  for  setting  aside  the  verdict:  1.  Because  an 
action  on  the  case  will  not  lie  against  a  tenant  for  years  for  permis- 
sive waste.  2.  Because  the  law  between  the  parties  measures  and 
limits  the  liability  of  the  tenant  in  the  matter  of  repairs. 

Depue,  J.  — The  action  on  the  case,  in  the  nature  of  waste,  has 
almost  entirely  superseded  the  common-law  action  of  waste,  as  well 
for  permissive  as  for  voluntary  waste,  as  furnishing  a  more  easy  and 
expeditious  remedy  than  a  writ  of  waste.  It  is  albo  an  action 
encouraged  by  the  courts,  the  recovery  being  confined  to  single 
damages,  and  not  being  accompanied  by  a  forfeiture  of  the  place 
wasted. 

At  common  law,  waste  lay  against  a  tenant  in  dower,  tenant  by 
the  curtesy  and  guardian  in  chivalry,  but  not  against  lessees  for  life 
or  years.  2  Inst.  299,  305;  Co.  Litt.  54.  The  reason  of  this  diver- 
sity was,  that  the  estates  and  interests  of  the  former  were  created 
by  the  law,  and  therefore  the  law  gave  a  remedy  against  them,  but 
the  latter  came  in  by  the  act  of  the  owner  who  might  have  provided 
in  his  demise  against  the  doing  of  waste  by  his  lessee,  and  if  he  did 
not,  it  was  his  negligence  and  default.  2  Inst.  299;  Doct.  &  Stu., 
ch.  1,  p.  102.  This  doctrine  was  found  extremely  inconvenient  as 
tenants  took  advantage  of  the  ignorance  of  their  landlords,  and 
committed  acts  of  waste  with  impunity.  To  remedy  this  inconve- 
nience the  statute  of  Marlbridge  (52  Hen.  3,  ch.  23),  was  passed. 
But  as  the  recompense  given  by  this  statute  was  frequently  inade- 
quate to  the  loss  sustained  the  statute  of  Gloucester  (6  Edw. 
I.,  ch.  5),  increased  the  punishment  by  enacting  that  the  place 
wasted  should  be  recovered,  together  with  treble  damages. 
1  Cruise  Dig.  119,  sees.  25,  26;  Sackett\.  Sackett,  8  Pick.  313,  per 
Parker,  C.  J.     The  statute  of  Marlbridge  is  in  the  following  words: 


428        USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CH.  II. 

"  Also  fermors,  during  their  terms,  shall  not  make,  waste,  sale,  nor 
exile  of  house,  woods,  and  men,  nor  of  anything  belonging  to  the 
tenements  that  they  have  to  ferm,  without  special  license  had  by 
writing  of  covenant,  making  mention  that  they  may  do  it;  which 
thing,  if  they  do  and  thereof  be  convict,  they  shall  yield  full  dam- 
age, and  shall  be  punished  by  amercement  grievously."  2  Inst. 
145.  The  word  fermer  (frmarii)  in  this  statute  comprehended  all 
such  as  held  by  lease  for  life  or  lives,  or  for  years,  by  deed  or  with- 
out deed.  2  Inst.  145,  note  1,  and  also  devisees  for  life  or  years. 
2  Roll.  Abr.  826,  L.  35.  By  the  statute  of  Gloucester,  "  it  is  pro- 
vided, also,  that  a  man,  from  henceforth,  shall  have  a  writ  of  waste, 
in  the  Chancery,  against  him  that  holdeth  by  law  of  England  or 
otherwise,  for  term  of  life,  or  for  term  of  years,  or  a  woman  in 
dower.  And  he  which  shall  be  attainted  of  waste,  shall  leese  the 
thing  that  he  hath  wasted,  and  moreover,  shall  recompense  thrice  so 
much  as  the  waste  shall  be  taxed  at.  And  for  waste  made  in  the 
time  of  the  wardship,  it  shall  be  done  as  is  contained  in  the  great 
charter. ' '  2  Inst.  299.  At  the  common  law,  a  tenant  at  will  was  pun- 
ishable for  voluntary  waste  but  not  for  permissive  waste.  Countess 
of  Salop  v.  Crompton,  Cro.  Eliz.  777,  784;  The  Countess  of  Shrews- 
bury's Case,  5  Rep.  14;  Hartnett  aud  Wife  v.  Maitland,  16  M.  &  W. 
258.  Tenants  in  dower,  by  the  curtesy,  for  life  or  lives,  and  for 
years,  were  included  in  the  statute  of  Gloucester.  Tenants  at 
will  were  always  considered  as  omitted  from  the  statute  of  Marl- 
bridge  as  well  as  from  the  statute  of  Gloucester,  and,  therefore, 
continued  to  be  dispunishable  for  mere  permissive  waste,  and  pun- 
ishable for  voluntary  waste  by  action  of  trespass  as  at  common  law. 
The  reason  of  this  exemption  of  tenants  at  will  from  liability  for 
permissive  waste,  was  the  uncertain  nature  of  their  tenure  which 
would  make  it  a  hardship  to  compel  them  to  go  to  any  expense  for 
repairs.  Their  exemption  from  the  highly  remedial  process  of 
waste  provided  by  the  statute  of  Gloucester,  is  attributable  to  the 
fact  that  the  owner  of  the  inheritance  might  at  any  time,  by  entry 
determine  the  estate  of  the  tenant,  and  thus  protect  the  inheritance, 
from  spoil  or  destruction. 

The  language  of  the  statute  of  Marlbridge  is,  "  shall  not  make 
(non  facie  nt)  waste,"  and  in  the  statute  of  Gloucester,  in  speaking 
of  guardians,  the  words  used  are,  "  he  which  did  waste  "  {que  avera 
fait  waste).  The  settled  construction  of  these  statutes  in  the  Eng- 
lish law  until  a  comparatively  recent  period  was,  that  they  included 
permissive  waste  as  well  as  voluntary  waste.  In  a  note  in  exposi- 
tion of  the  statute  of  Marlbridge,  Lord  Coke,  in  commenting  on  the 
words  "  no/i  facient"  says:       '  To  do  or  make  waste,  in  legal  under- 


III.  I.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     429 

standing  in  this  place,  includes  as  well  permissive  waste,  which  is 
waste  by  reason  of  omission  or  not  doing  as  for  want  of  reparation, 
as  waste  by  reason  of  commission,  as  to  cut  down  timber,  trees,  or 
prostrate  houses,  or  the  like;  and  the  same  word  hath  the  statute 
of  Gloucester,  ch.  5,  que  aver  fait  waste,  and  yet  is  understood  as 
well  of  passive  as  active  waste,  for  he  that  suffereth  a  house  to 
decay  which  he  ought  to  repair,  doth  the  waste."  2  Inst.  145; 
7  Bac.  Abr.  250;  3  Bl.  Com.  225;  2  Saund.  252;  4  Kent,  76.  So, 
under  the  prohibition  to  do  waste,  the  tenant  is  held  to  be  bounden 
for  the  waste  of  a  stranger,  though  he  assented  not  to  the  doing  of 
waste.  Doct.  &  Stu.,  ch.  4,  p.  113;  2  Inst.  303;  Fay  v.  Brewer,  3 
Pick.  203;  1  Washburn  R.  Prop.  116.  It  is  common  learning  that 
every  lessee  of  land,  whether  for  life  or  years,  is  liable  in  an  action 
of  waste  to  his  lessor,  for  all  waste  done  on  the  land  in  lease  by 
whomsoever  it  may  be  committed,  per  Heath,  J.,  in  Attersoll  v 
Stevens,  1  Taunt.  198,  with  the  exception  of  the  acts  of  God,  public 
enemies,  and  the  acts  of  the  lessor  himself.  White  v.  Wagner,  4 
Harr.  &  Johns.  373;  4  Kent,  77;  Heydon  and  Smith's  Case,  13  Coke, 
69.  The  instances  in  the  earlier  reports  in  which  lessees  for  life  or 
years,  were  held  liable  for  permissive  waste,  which  consisted  in 
injuries  resulting  from  acts  of  negligence  or  omission,  are  quite  fre- 
quent; and  their  liability  is  grounded,  not  on  the  covenants  or 
agreements  in  the  instruments  of  demise,  but  on  the  statute,  which 
subjected  them  to  the  action  of  waste.  Griffith's  Case,  Moore,  69, 
No.  1S7;  lb.  62,  No.  173;  lb.  73,  No.  200;  Keilway,  206;  Darcy  v. 
Askivith,  Hobart,  234;  Glover  v.  Pipe,  Owen,  92;  3  Dyer,  281;  2 
Roil.  Abr.  816  1,  40:  22  Win.  Abr.  Waste,  "  c  "  and  "  d,"  pp.  436- 
440,  443;  Co.  Litt.  52a,  53/;;  5  Com.  Dig.  Waste,  d  2,  d 4;  Bissett 
on  Estates,  299,  300.  So  uniformly  had  the  courts  determined  that 
lessees  for  life  or  years  had  committed  waste,  by  the  application  of 
the  common-law  rules,  with  respect  to  waste,  whether  of  omission 
or  commission,  that  the  learned  commentator  on  English  law  says, 
"  that  for  above  five  hundred  years  past,  all  tenants  merely  for  life, 
or  for  any  less  estate,  have  been  punishable  or  liable  to  be 
impeached  for  waste,  both  voluntary  and  permissive;  unless  their 
leases  be  made,  as  sometimes  they  are,  without  impeachment  of 
waste."     2  Bl.  Com.  283. 

This  construction  of  the  statutes  of  Marlbridge  and  Gloucester 
continued  to  be  received  without  dissent  until  the  decision  of  the 
case  of  Gibson  v.  Wells,  4  B.  &  P.  290,  in  the  year  1805,  which  was 
followed  by  the  case  of  Heme  v.  Bembow,  4  Taunt.  764  (18 13). 
These  cases  it  is  insisted  have  settled  the  construction  against  the 
liability  of  a  tenant  for  years  for  permissive  waste.      Gibson  v.  Wells, 


430         USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CH.  II. 

is  not  an  authority  for  this  position.  The  tenant  against  whom  the 
action  there  was  brought  was  a  tenant  at  will,  who  is  not  included 
within  the  statutes,  and  who,  at  common  law,  was  punishable  for 
voluntary,  but  not  for  permissive  waste.  In  Heme  v.  Bembow,  it 
does  not  clearly  appear  that  the  lease  was  for  a  term.  It  is  certain 
that  the  opinion  of  the  court,  proceeded  upon  the  principles  appli- 
cable to  tenants  at  will.  As  the  case  is  reported  in  Taunton,  it 
appears  to  have  been  decided,  without  argument  or  consideration. 
The  opinion  is  a  per  curiam  opinion,  and  the  only  case  cited  is  the 
Countess  of  Shrewsbury  s  Case,  5  Co.  14,  which  was  a  case  of  a  ten- 
ancy at  will. 

The  only  subsequent  case  which  sustains  these  cases  is  Torriano 
v.  Young,  6  C.  &  P.  8,  a  case  at  nisi  prius.  In  other  cases  where 
Heme  v.  Bembow  was  cited,  the  English  courts  show  no  disposition 
to  follow  it.  In  Jones  v.  Hill,  7  Taunt.  392,  Gibbs,  C.  J.  expressly 
guards  himself  against  being  supposed  to  concur  in  the  position 
that  an  action  will  not  lie  against  a  lessee  for  years  for  permissive 
waste.  In  Martin  v.  Gilliam,  7  A.  &  E.  540,  and  in  Beale  v.  Sanders, 
3  Bing.  N.  C.  850,  a  decision  of  that  question  is  avoided;  and  in 
Harnett  v.  Maitland,  16  M.  &  W.  256,  261,  Parke,  B.,  on  Gibson  v. 
Wells,  Heme  v.  Bembow,  and  Torraino  v.  Young  being  cited, 
intimates  an  opinion  against  those  cases  as  necessarily  involving 
the  result  that  a  tenant  for  life  is  also  dispunishable  for  permis- 
sive waste.  Text  writers  of  acknowledged  authority  have  not 
recognized  these  cases  as  settling  the  law  against  the  older  cases 
and  the  opinions  of  Coke  and  Blackstone,  but  have  regarded  them 
as  merely  throwing  a  doubt  upon  a  principle  that  had  previously 
been  set  at  rest.  2  Saund.  252  b,  note  ij  Arch.  L.  &  T.  196,  7; 
Smith  on  L.  &  T.  196;  Comyn  on  L.  &  T.  495,  and  note  e;  2  Bou- 
vier's  Law  Diet.  645,  Waste,  §  14;  1  Washburn  on  R.  Prop.  124,  and 
note  1.  By  other  legal  writers  they  are  doubted  or  condemned  as 
unsound  in  principles.  Roscoe  on  Real  Actions,  385;  Ferrard  on 
Fixtures,  278,  281,  note;  1  Evans'  Statutes,  193,  note;  Brown  on 
Parties,  257;  4  Kent,  76,  79;  Elmes  on  Dilapidations,  257. 

Independent  of  authority,  the  true  construction  of  the  statute  of 
Gloucester,  leads  to  the  conclusion  that  tenant  for  life  or  years,  was 
made  liable  for  permissive  as  well  as  voluntary  waste.  Before  either 
this  act  or  the  statute  of  Marlbridge  was  passed,  waste  was  recog- 
nized  in  the  law,  as  an  injury  to  the  inheritance,  resulting  either 
from  acts  of  commission  or  of  omission.  Neither  of  these  statutes 
created  new  kinds  of  waste,  but  gave  a  new  remedy  for  old  wastes, 
leaving  what  was  waste,  and  what  not,  to  be  determined  by  the 
common  law.    -•  Inst.  300;  and  by  the  statute  of  Gloucester  the  writ 


III.  I.]     SPECIAL  RESTRICTIONS  PROTECTING    INHERITANCE.     43 1 

of  waste  was  suable  out  of  Chancery  as  well  against  lessee  for  life  or 
years,  as  against  tenant  by  the  curtesy,  or  in  dower,  putting  the 
former,  as  to  the  newly  created  remedy,  on  the  same  footing  as  the 
latter.  "  It  hath  been  used  as  an  ancient  maxim  in  the  law,  that 
tenant  by  the  curtesy,  and  the  tenant  in  dower,  should  take  the  land 
with  this  charge,  that  is  to  say,  that  they  should  do  no  waste  them- 
selves, nor  suffer  none  to  be  done,  and  when  an  action  of  waste  was 
given  after,  against  a  tenant  for  term  of  life,  then  he  was  taken  to 
be  in  the  same  case,  as  to  the  point  of  waste,  as  tenant  by  the  cur- 
tesy and  tenant  in  dower  was,  that  is  to  say,  that  he  should  do  no 
waste,  nor  suffer  none  to  be  done."  Doct.  &  Stu.,  ch.  4,  p.  113. 
No  distinction  can  be  made  between  lessee  for  life  and  lessee  for 
years.  Both  are  mentioned  in  the  statute  conjointly;  and  each 
derives  his  interest  in  the  premises  from  the  act  of  the  owner  of 
the  inheritance. 

The  second  section  of  the  act  for  the  prevention  of  waste,  which 
is  in  force  in  this  state  (Nix.  Dig.,  4th  ed.,  1022),  provides  that  no 
tenant  for  life  or  years,  or  for  any  other  term,  shall  during  the  term 
make  or  suffer  any  waste,  sale  or  destruction  of  houses,  gardens, 
orchards,  lands,  or  woods,  or  anything  belonging  to  the  tenements 
demised,  without  special  license  in  writing,  making  mention  that  he 
may  do  it.  The  third  section  is  in  substance  the  same  as  the  stat- 
ute of  Gloucester.  The  act  was  passed  in  1795.  The  use  of  the 
words  "  make  or  suffer,"  in  the  second  section,  which  are  equiva- 
lent to  Coke's  interpretation  of  facie nt  in  the  statute  of  Marlbridge, 
manifests  an  intent  to  adopt  as  the  law  of  this  state,  the  doctrine  of 
the  English  courts,  as  to  the  liability  of  tenants  for  life  or  years  for 
permissive  waste,  which  was  universally  received  at  the  time  of  the 
passage  of  the  act. 

The  second  reason  assigned  involves  the  effect  of  the  lease  in  this 
action. 

Premising  that  the  act  or  omission,  to  constitute  waste,  must  be 
either  an  invasion  of  the  lord's  property,  or  at  least  be  some  act  or 
neglect  which  tends  materially,  to  deteriorate  the  tenement,  or  to 
destroy  the  evidence  of  its  identity;  (Burton's  Comp.  R.,  Prop.  411; 
Doe  ex  dem.  Gntbb  v.  Earl  of  Burlington,  5  B.  &  Ad.  507;  2  Saund. 
259^,  note  0 . ;  Pynchon  v.  Stearnst  11  Met.  304;  1  Washburn,  R. 
Prop.  108);  and  that  the  action  is  founded  partly  upon  the  common 
law  and  partly  upon  the  statute,  and  does  not  depend  for  its  support 
on  any  covenants  of  the  tenant,  22  Viner  Abr.  457,  Waste  M.  4;  3 
Bl.  Com.  227;  Kinlyside  v.  Thornton,  2  W.  Black,  mi;  Market  v. 
Kenrick,  13  C.  B.  188,  it  is  obvious  that  we  must  resort  to  the  statute 
for  the  conditions  on  which  the  tenant  is  excusable  for  the  waste  done. 


432         USE   OF    LAND    BY    PARTICULAR   TENANT.      [PT.  III.   CII.  II. 

There  is  a  class  of  cases  in  which  tenants  have  been  held  not  to 
be  liable  for  waste  resulting  from  non-repair  where  the  lessor  has 
entered  into  a  covenant  to  make  the  repairs  for  the  want  of  which 
the  injury  has  happened.  These  cases  go  upon  the  ground  that  the 
injury  was  caused  by  the  lessor's  own  default,  on  which  he  can  base 
no  right  to  recover.  There  is  no  such  covenant  in  the  lease  now 
under  consideration. 

The  statute  forbids  waste  by  the  tenant  "  without  special  license, 
in  writing,  making  mention  that  he  may  do  it."  The  consent  of  the 
landlord  by  parol  will  not  be  sufficient  authority.  McGregor  v- 
Brown,  6  Seld.  114.  The  words  usually  employed  for  this  purpose 
are  "  without  impeachment  of  waste,"  but  any  words  of  equivalent 
import  will  be  sufficient,  provided  they  amount  to  a  license  to  do 
the  acts.  The  defendant,  to  bring  himself  within  the  statute,  relies 
on  that  part  of  the  lease  which  relates  to  the  re-delivery  of  the  per- 
sonal property  leased,  in  connection  with  the  stipulation  giving  the 
defendant  the  privilege  of  expending  a  portion  of  the  rent  in  each 
year  for  repairs.  The  covenant  as  to  the  personal  property  is 
entirely  distinct  from  the  obligations  of  the  tenant,  with  respect  to 
the  real  estate.  The  privilege  of  expending  a  portion  of  the  rent 
reserved  in  repairs  is  not  a  license  to  the  tenant  to  omit  a  duty  put 
upon  him  by  the  statute,  growing  out  of  the  relations  between  the 
parties.  To  construe  a  privilege  given  by  the  landlord  to  expend 
his  money  in  the  reparation  of  the  demised  premises,  as  a  license 
to  the  tenant  to  omit  his  duty,  to  the  spoil  or  destruction  of  the 
inheritance,  would  be  an  entire  subversion  of  the  obvious  intent  of 
the  landlord.  If  it  falls  short  of  a  license  for  the  act  complained 
of,  it  does  qualify  or  abridge  the  obligation  of  the  tenant  which 
exists  independent  of  the  provisions  of  the  lease. 

It  was  further  insisted  that  if  any  action  lies,  it  should  be  an 
action  ex  contractu,  and  not  in  tort.  As  already  observed,  the  grava- 
men of  the  action  is  the  breach  of  a  statutory  duty.  An  action  on 
the  case  founded  in  tort  will  lie  for  the  breach  of  a  duty  though  it  be 
such  as  that  the  law  will  imply  a  promise  on  which  an  action  ex  con- 
tractu may  be  maintained.  Brunell  v.  Lynch,  5  B.  &  C.  589.  To 
the  same  effect  are  the  cases  of  Kinlyside  v.  Thornton  and  Marker 
v.  Kenrick,  already  cited,  in  which  it  was  held  that  an  action  on  the 
m  the  nature  of  waste  will  lie,  although  the  act  complained  of 
might  also  be  the  subject  of  an  action  for  the  breach  of  an  express 
covenant. 

Rule  discharged. 


III.  i.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     433 

CANNON  v.  BARRY. 

59  Mississippi,  289.  —  18S1. 

Chalmers,  C.  J.  delivered  the  opinion  of  the  court.  — The  com- 
plainants (appellants)  are  the  children  of  R.  L.  Cannon,  and  claim, 
under  the  deed  executed  by  their  grandfather,  Rusha  Cannon,  to  be 
the  remaindermen  of  the  property  therein  conveyed  for  life  to  their 
said  father.  They  bring  this  bill  against  the  defendant,  Barry,  who 
has  become  the  purchaser  at  bankrupt  sale  of  the  life  estate  of  the 
father,  alleging  that  he  has  committed,  and  is  cummitting,  waste 
upon  the  inheritance,  for  which  they  seek  an  account  for  the  past 
and  an  injunction  for  the  future.     *     *     * 

R.  L.  Cannon,  being  still  alive,  the  interest  of  the  complainants 
remains  contingent,  dependent  upon  the  double  contingency  of 
their  surviving  him,  and  of  their  attaining  majority  or  marrying. 
Hence,  the  bill  cannot  be  maintained  so  far  as  it  seeks  an  account 
of  past  waste,  since  their  interest  not  being  vested,  and  it  being 
doubtful  whether  it  will  ever  become  so,  they  would  have  no  right 
to  any  recovery  that  might  be  obtained.  Whether  they  are  entitled 
to  any  other  relief  depends  upon  the  character  of  the  acts  done  or 
permitted  by  the  life  tenant  in  possession.  The  locus  in  quo  con- 
sists of  twelve  hundred  acres  of  land,  of  which  about  three  hundred 
acres  only  are  arable,  the  balance  being  swampy  in  character  and 
heavily  timbered.  When  the  defendant  took  possession,  the  arable 
portion  was  in  such  condition  that  it  was  wholly  unproductive  for 
the  first  year  thereafter.  By  rebuilding  the  fences,  clearing  thirty  or 
forty  acres  additional,  removing  some  of  the  tenant's  cabins  to 
other  locations,  and  building  several  new  ones,  he  has  brought  up 
the  rental  value  of  the  place  to  something  less  than  three  hundred 
dollars  per  annum,  exclusive  of  the  amounts  expended  each  year  in 
making  these  improvements.  In  accomplishing  these  results,  he 
has  freely  cut  and  used  the  growing  timber  on  the  place,  of  which 
there  is  a  superabundance  for  this  and  all  other  purposes.  In  so 
doing,  as  well  as  in  removing  the  cabins,  and  perhaps  in  other 
respects,  he  has  unquestionably  been  guilty  of  that  which  would  be 
deemed  waste  under  the  English  authorities,  but  which  we  cannot 
pronounce  to  be  such  under  the  state  of  things  existing  with  us,  and 
under  the  circumstances  of  this  case.  The  condition  of  this  country 
and  that  of  England  are  wholly  dissimilar,  and  that  which  would  be 
a  safe  test  there  is  altogether  inapplicable  here.  With  us,  speaking 
generally,  it  may  be  said  that  nothing  will  ordinarily  be  held  to  con- 
stitute waste  which   is   dictated   by  good   husbandry,  and  promotes 

LAW  OF  PROP.   IN  LAND  —  28 


434        USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CH.  II. 

rather  than  diminishes  the  permanent  value  of  the  property  as  an 
estate  of  inheritance  That  such  has  been  the  nature  and  effect  in 
the  main,  of  the  acts  of  the  defendant,  is  incontestably  established 
by  the  testimony  in  the  case. 

He  has  been  guilty  of  permissive  waste  in  suffering  the  mansion 
to  go  to  decay,  and  also  perhaps  with  respect  to  the  orchard,  but 
courts  of  equity  take  no  jurisdiction  of  permissive  waste  by  a  life 
tenant.  Their  constant  interference  in  such  matters  would  render 
the  enjoyment  of  the  life  estate  impossible.  But  the  defendant  has 
also  been  guilty  of  three  acts  of  unmistakable  voluntary  waste.  He 
detached  from  the  gin-house  and  sold  the  running  gear  machinery 
thereto  belonging;  nor  does  it  change  the  character  of  the  act  that 
it  was  done  at  the  instance  of  the  father  of  the  complainants,  who 
received  a  portion  of  the  price  obtained.  The  father  had  no  longer 
any  interest  in  the  property,  and  was  not  the  legal  guardian  of  his 
children.  He  has  suffered  the  gin-house  to  be  partially  dismantled, 
and  though  it  was  done  without  his  knowledge,  he  is  nevertheless 
responsible  for  it. 

More  serious  than  these  was  his  act  in  voluntarily  permitting  a 
large  body  of  the  woodland  to  become  forfeited  to  the  state  for 
unpaid  taxes.  That  the  land  forfeited  was  unproductive,  that  there 
remained  belonging  to  the  estate  sufficient  wood  to  supply  its  wants 
indefinitely,  that  the  land  had  been  overvalued  by  the  assessor,  and 
that  the  defendant  had  tried  in  vain  to  have  valuation  reduced,  and 
that  the  board  of  supervisors  in  making  the  levy  of  county  taxes  had 
exceeded  the  limit  of  their  authority,  afford  no  excuse  for  his 
action.  He  took  the  estate  as  a  whole,  and  was  bound  to  so  pre- 
serve it.  He  cannot  segregate  the  profitable  from  the  unprofitable, 
nor  the  sterile  from  the  fertile,  by  preserving  the  one  at  the  sacrifice 
of  the  other.  The  taxes  were  his  individual  debt,  and  the  fact  that 
they  constituted  a  lien  on  both  his  own  interests  and  that  of  the 
remaindermen  made  it  his  duty  to  keep  them  down.  While  a  sale 
for  taxes  levied  in  excess  of  authority  would  by  law  then  in  force 
have  conveyed  no  title  to  the  purchaser,  see  Gamble  v.  Witty,  55 
Miss.  26,  it  would  have  cast  a  cloud  upon  the  title  and  by  enabling 
the  purchaser  to  add  onerous  damages  to  the  amount  paid,  as  a  lien 
on  the  land,  see  Cogburn  v.  Hunt,  56  Miss.  718;  s.  c.  ,57  Miss.  681, 
it  would  have  added  to  the  burden  cast  upon  the  tenants  in 
remainder. 

These  acts  of  voluntary  waste  call  for  relief.  The  defendant 
should  be  required,  within  such  time  as  the  chancellor  may  deem 
reasonable,  to  redeem  or  repurchase  the  forfeited  lands,  and  upon 
his  failure  so  to  do  a  commissioner  should  be  appointed  to  sequester 


III.  i.J     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     435 

the  rents,  or  so  much  of  them  as  may  be  necessary  for  this  purpose. 
For  the  purpose  of  redeeming  the  lands  and  of  hereafter  keeping 
down  the  taxes,  the  defendant  will  be  permitted  to  fell  timber  in 
such  quantities  and  at  such  places  as  do  not  seriously  impair  the 
value  of  the  inheritance.  As  tenant  for  life  he  has  the  right  to  do 
this,  even  for  purposes  of  profit.  Sargeant  v.  Towne,  10  Mass.  303. 
Conner  v.  Shepherd,  15  Mass.  164.  If  it  be  true  that  the  State  has 
no  title  to  the  forfeited  lands,  by  reason  of  an  invalid  sale  or  levy  of 
taxes,  an  easy  remedy  for  the  defendant  is  found  in  §  569  of  the 
Code  of  1S80,  which  provides  a  method  of  striking  from  the  audit- 
or's books  lands  improperly  claimed  by  the  state.  Lastly,  the 
defendant  should  be  enjoined  from  any  further  acts  of  voluntary 
waste  to  the  detriment  of  the  inheritance.  When  the  case  is 
returned  to  the  lower  court,  the  bill  should  be  amended  by  making 
the  trustees,  or  the  survivor  of  them,  parties.  They  are  clothed 
with  the  legal  title  to  the  estate,  and  while  the  contingent  remainder- 
men need  not  wait  on  them  for  an  assertion  of  their  rights,  the 
holders  of  the  legal  title  should,  where  it  is  possible,  be  before  the 
court.  Kerr  on  Injunctions,  256,  267.  So,  also,  should  J.  N.  Can- 
non and  his  children,  if  he  has  any,  be  made  parties.  They  stand 
in  the  same  attitude  as  the  complainants,  and  equally  with  them  are 
contingent  remaindermen.  It  is  only  where  the  first  tenant  in  tail 
in  esse  has  a  vested  estate  of  inheritance  that  he  is  held  to  so  far 
represent  all  subsequent  tenants  in  tail  as  to  dispense  with  the 
necessity  of  joining  them.  The  doctrine  does  not  apply  to  a  con- 
tingent remainderman  with  no   vested    interest.     Story's   Eq.  PL, 

§§  I45-X47- 

Reversed  and  remanded. 


UNITED  STATES  v.  BOSTWICK. 

94  United  States,  53.  —  1876. 

Suit  by  Bostwick,  as  trustee  for  Lovett,  to  recover  the  rent  of, 
and  for  damages  to,  certain  real  estate  in  the  District  of  Columbia. 
The  United  States  appeals  from  a  decision  in  favor  of  plaintiff. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court: 
*  *  *  The  contract  is  one  by  which  Mr.  Lovett  agreed  to  let  and 
the  United  States  to  hire,  the  premises  described  for  the  term  of 
one  year,  with  the  privilege  of  three,  at  a  rent  of  $500  a  month,  and 
without  restriction  as  to  the  use  to  which  the  property  might  be 
put.  The  United  States  agree  to  nothing  in  express  terms  except 
to  pay  rent  and  hold  for  one  year. 


436        USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CII.  II. 

But  in  every  lease  there  is,  unless  excluded  by  the  operation  of 
some  express  covenant  or  agreement,  an  implied  obligation  on  the 
part  of  the  lessee  to  so  use  the  property  as  not  unnecessarily  to 
injure  it,  or,  as  it  is  stated  by  Mr.  Comyn,  "  to  treat  the  premises 
demised  in  such  manner  that  no  injury  be  done  to  the  inheritance; 
but  that  the  estate  may  revert  to  the  lessor  undeteriorated  by  the 
wilful  or  negligent  conduct  of  the  lessee."  Com.  Land  &  Ten. 
188.  This  implied  obligation  is  part  of  the  contract  itself,  as  much 
so  as  if  incorporated  into  it  by  express  language.  It  results  from 
the  relation  of  landlord  and  tenant  between  the  parties  which  the 
contract  creates.  Holford  v.  Dunnett,  7  M.  &  W,  352.  It  is  not  a 
covenant  to  repair  generally,  but  to  so  use  the  property  as  to  avoid 
the  necessity  for  repairs,  as  far  as  possible.  Horsefall  v.  Mather,  7 
Holt,  9;  Brown  v.  Crump,  1  Marsh.  569. 

There  are  in  this  contract  no  stipulations  to  take  the  place  of  or 
in  any  manner  restrict  this  implied  obligation  on  the  part  of  the 
United  States  growing  out  of  their  relation  to  the  petitioner  as  his 
lessees.  They  had  the  free  and  unrestricted  right  to  use  the  prop- 
erty for  any  and  all  purposes,  but  were  bound  to  so  conduct  them 
selves  in  such  use  as  not  to  cause  unnecessary  injury.  Whatever 
damages  would  necessarily  result  from  a  use  for  the  same  purpose 
by  a  good  tenant  must  fall  upon  the  lessor.  All  that  the  relation 
of  landlord  and  tenant  implies  in  this  particular  is,  that  the  tenant, 
while  using  the  property,  will  exercise  reasonable  care  to  prevent 
damage  to  the  inheritance.  His  obligation  rests  upon  the  maxim 
sic  utere  tuo  ut  alienum  non  hedas.  If  he  fails  in  this,  he  violates  his 
contract,  and  must  respond  accordingly. 

The  United  States,  when  they  contract  with  their  citizens,  are 
controlled  by  the  same  laws  that  govern  the  citizen  in  that  behalf. 
All  obligations  which  would  be  implied  against  citizens  under  the 
same  circumstances  will  be  implied  against  them.  No  lease  in  form 
was  ever  executed  in  this  case;  but  the  contract,  followed  by  the 
delivery  of  possession  and  occupation  under  it,  is  equivalent  for 
the  purposes  of  this  action  to  a  lease  duly  executed,  containing  all  the 
stipulations  agreed  upon. 

Such  being  the  agreement  of  the  parties,  it  remains  only  to  con- 
sider  the  questions  arising  under  it,  as  they  appear  in  the 
re<  ord.     *     *     * 

As  to  the  destruction  of  a  part  of  the  buildings  by  fire.  There 
was,  as  has  been  seen,  no  express  agreement  to  repair  in  the  lease. 
I  implied  obligation  is  not  to  repair  generally,  but  to  so  use  the 
property  as  to  make  repairs  unnecessary,  as  far  as  possible.  It  is 
in  effe<  I   a  <  ovenant   against   voluntary  waste,  and  nothing  more. 


III.  i.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     437 

It  has  never  been  so  construed  as  to  make  a  tenant  answerable  for 
accidental  damages,  or  to  bind  him  to  rebuild,  if  the  buildings  are 
burned  down  or  otherwise  destroyed  by  accident.  In  this  case  it 
has  not  been  found,  neither  is  it  claimed  in  the  petition,  that  these 
premises  were  burned  through  the  neglect  of  the  United  States. 
No  judgment  can,  therefore,  be  rendered  against  the  United  States 
on  this  account.     *     *     * 

It  appears  in  the  finding  that  during  the  occupancy  under  the 
lease  ornamental  trees  were  destroyed;  fences  and  walls  torn  down, 
and  the  materials  used  for  sidewalks  and  the  erection  of  other 
buildings,  or  carried  away,  and  that  stone  was  quarried  and  gravel 
dug  from  a  stone-quarry  and  gravel-pit  on  the  premises,  and  taken 
away.  This  was  voluntary  waste,  and  within  prohibition  of  the 
implied  agreement  in  the  lease.  For  this  the  Court  of  Claims  can 
award  compensation  in  this  action.  The  amount  of  this  damage 
has  not  been  found.     *     *     * 

Judgment  reversed. 


LOTHROP  v.  THAYER. 

138  Massachusetts,  466.  —  1885. 

Contract,  with  a  count  in  tort,  to  recover  for  the  loss  by  fire  of 
a  building  and  certain  personal  property  therein. 

Plaintiff  let  to  defendants  the  building  in  question,  excepting  cer- 
tain rooms  in  the  second  story  which  plaintiff  continued  to  occupy. 
During  the  term  the  building  was  destroyed  by  fire.  The  jury 
found  that  the  property  of  plaintiff  was  burned  by  the  carelessness 
and  negligence  of  defendants,  but  not  intentionally.  Judgment  for 
plaintiff,  defendant  appeals. 

Field,  J. :  The  property  destroyed  or  damaged  by  fire  was,  first, 
the  portion  of  the  buildings  let  by  the  plaintiff  to  the  defendants,  or 
to  one  of  them;  second,  the  remaining  portion  of  the  building 
belonging  to  the  plaintiff  and  in  his  possession;  and,  third,  personal 
chattels  of  the  plaintiff  in  part  in  the  portion  of  the  building  let,  and 
in  part  in  the  remaining  portion.     *     *     * 

The  defendants  requested  an  instruction  that  they  were  not  liable 
for  mere  negligence,  which  was  refused;  and  the  court  instructed 
the  jury  that,  "  if  the  fire  was  caused  by  their  negligence,"  they 
would  be  liable,  which  means  liable  for  the  whole  loss.  *  *  * 
[Here  follows  a  discussion  of  the  law  as  to  the  spreading  of  fires  to 
neighboring  property,  j 

It  must,  however,  we  think,  be   regarded   as  too  well  established 


438        USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CH.  II. 

to  be  overturned  by  judicial  decision  that  the  occupant  of  a  building 
is  responsible  to  the  owners  of  adjoining  property  for  the  want  of 
ordinary  care  on  the  part  of  himself  or  his  servants,  acting  within 
the  scope  of  their  employment,  in  kindling  or  guarding  the  fires 
used  for  heating  the  building. 

The  distinction  between  the  liability  of  a  tenant  at  will  to  his  land- 
lord, and  of  an  occupant  to  his  adjoining  proprietors  for  damage 
by  fire,  is  sharply  drawn  in  Panton  v.  I  sham,  3  Lev.  359.  On  special 
verdict,  it  was  found  that  the  plaintiff  was  seized  of  six  stables,  and 
demised  one  to  the  defendant,  for  a  week,  for  eight  shillings,  and 
so  from  week  to  week  at  eight  shillings  per  week,  as  long  as  both 
parties  should  please,  and  demised  the  other  five  stables  to  other 
persons  for  divers  terms  yet  to  come,  whereby  they  were  possessed, 
and  the  fire  by  the  defendant's  negligence  six  weeks  afterwards 
began  in  the  stable  demised  to  the  defendant,  and  burnt  the  same 
and  all  the  other  stables;  and  it  was  held  "that  for  the  stable 
demised  to  the  defendant  himself  no  action  lay;  for  the  demise  to 
him  could  be  no  more  than  a  term  for  three  weeks,  and  for  the  resi- 
due he  was  tenant  at  will,  against  whom  no  action  lay  for  negligent 
waste,  as  5  Co.  13,  The  Countess  of  Salop's  Case.  But  thirdly,  as 
to  the  stables  demised  to  the  others,  the  action  well  lies,  as  if  they 
were  the  stables  of  strangers,  and  not  of  the  lessor;  for  as  to  them 
there  is  no  privity  between  the  plaintiff  and  defendant,  but  as  to  them 
they  are  as  nothing." 

At  common  law  a  tenant  for  life,  or  for  years,  or  at  will,  was  not 
liable  for  waste,  but  tenants  for  life  or  years  were  made  liable  by 
the  statute  of  Marlebridge,  52  Hen.  III.,  c.  23,  and  by  the  statute  of 
Gloucester,  6  Edw.  1,  c.  5,  2  Inst.  144,  299  Co.  Lit.  53a,  53b. 
Sackett  v.  Sachet/,  8  Pick.  309.  A  tenant  at  will  was  not  within 
these  statutes,  and  it  was  held  that,  although  a  tenant  at  will  might 
be  liable  to  his  landlord  in  an  action  of  trespass  for  voluntary  waste, 
no  action  would  lie  for  permissive  waste.  Co.  Lit.  57a,  note. 
Daniels  v.  Pond,  21  Pick.  367.  Our  statutes  give  an  action  of  waste, 
or  of  tort  in  the  nature  of  waste,  against  a  tenant  in  dower,  by  the 
curtesy,  or  for  life  or  years,  but  not  against  a  tenant  at  will.  Pub. 
Sts.,  c.  179,  §$  1,  3. 

It  was  early  decided  that  if  a  tenant  at  will  negligently  kept  or 
guarded  his  fire,  whereby  the  house  was  burned,  this  was  permissive 
waste,  for  which  he  was  not  liable  to  his  landlord.  The  Countess  of 
Shrewsbury' s  Case,  5  Rep.  13b,  was  this.  The  Countess  of  Shrews- 
bury brought  an  action  in  the  case  against  Richard  Crampton,  a 
lawyer  of  the  Temple,  and  declared  that  she  leased  to  him  a  house 
at   will,   and  "quod  tile  tarn  negligenter  d  improvide  custodivit ignem 


III.  i.]     SPECIAL  RESTRICTIONS  PROTECTING   INHERITANCE.     439 

suum,  quod  domus  ilia  co?nbusta  full,  "  etc.;  "and  it  was  adjudged 
that  for  this  permissive  waste  no  action  lay."  Countess  of  Salop  v. 
Crompton,  Cro.  Eliz.  777,  784,  was  an  action  on  the  case,  and  the 
declaration  was  that  the  defendant,  being  in  possession  of  a  house, 
stable,  and  three  barns,  as  tenant  at  will,  "  tarn  negligenter  et  im- 
provide  kept  his  fire  in  the  said  house;  that  through  default  of  good 
keeping  thereof  the  said  house,  stable,  and  barns  were  burnt  down," 
etc.;  and  it  was  held  "  that  for  the  negligent  burning,  this  nor  any 
other  action  lies."     See  Y.  B.  48  Edw.  III.  25,  pi.  8. 

The  reasoning  of  these  old  cases  is  undoubtedly  technical,  but 
they  were  decided  with  full  knowledge  that  an  action  lay  for  an 
injury  to  a  personal  chattel,  caused  by  the  negligent  keeping  of  the 
bailee.  Countess  of  Shrewsbury' s  Case,  ubi  supra.  It  is  admitted  to 
be  the  law  that  a  tenant  at  will  is  not  liable  for  permissive  waste. 
Hartnett  v.  Maitland,  16  M.  &  W.  257;  Moore  v.  Towns/tend,  4 
Vroom,  284;  Coale  v.  Hannibal  &*  St.  Joseph  Railroad,  60  Mo.  227. 

But  it  is  suggested  that  these  defendants,  under  our  statutes, 
were  not  tenants  at  will  within  the  meaning  of  the  rule;  and  it  is 
denied  that  the  careless  and  negligent  acts  of  the  defendants, 
whereby  the  building  was  burnt,  constitute  permissive  waste.  The 
defendant's  estate,  not  being  created  by  an  instrument  in  writing, 
had,  under  the  Gen.  Sts.,  c.  89,  §  2,  the  force  and  effect  of  an 
estate  at  will  only;  and  it  is  therefore  unnecessary  to  determine  a 
question  which  has  been  somewhat  disputed,  whether  tenants  from 
year  to  year  are  liable  for  permissive  waste.  The  burning  of  a 
building  through  the  negligent  keeping  of  a  fire  by  a  tenant  is  by 
modern  text-writers  regarded  as  permissive  waste.  4  Kent.  Com. 
8r,  1  Add.  Cont.  (8th  ed.)  253;  Add.  Torts,  239;  Smith's  Ld. 
&  Ten.  (3d  ed.)  287;  Taylor's  Ld.  &  Ten.  §  349;  Gibbons  on 
Dilapidations  (2d  ed.)  108,  128;  Comyn's  Ld.  &  Ten.  171. 

The  diligence  of  the  counsel  for  the  plaintiff  has  not  shown  us 
any  case  in  which  it  has  been  held  that  a  tenant  at  will  is  liable  to 
his  landlord  for  injuries  occasioned  by  his  negligence  in  kindling  or 
keeping  fires  in  stoves,  fireplaces,  or  chimneys  intended  to  be  used 
for  heating  the  premises.  Such  a  case  is  presented  in  Scott  v. 
Hale,  16  Maine,  326,  but  the  defendant  had  a  verdict.  The  degree 
of  care  which  the  ruling  at  nisi  prius  required  was  that  of  "  a  dis- 
creet, prudent,  and  careful  man  in  the  possession  of  his  own  prem- 
ises." Of  this  the  court  say:  "  We  think  this  was  a  most  liberal 
instruction  in  favor  of  the  plaintiff.  But  we  forbear  now  to  go  more 
minutely  into  the  discussion  of  questions  argued,  not  because  they 
have  not  occupied  our  attention,  for  they  have."  The  verdict  was 
set  aside  on  other  grounds. 


440         USE    OF    LAND    BY    PARTICULAR   TENANT.      [PT.  III.  CII.  II. 

In  the  case  cited  of  Parrott  v.  Barney \  Deady,  405,  S.  C.  on 
appeal,  1  Sawyer,  423;  the  tenancy  was  from  year  to  year,  and  the 
damage  was  from  explosive  substances  stored  in  the  building. 
There  is  nothing  in  United  States  v.  Bostwick,  94  U.  S.  53,  or  in 
Robinson  v.  Wheeler,  25  N.  Y.  252,  that  decides  that  a  tenant  at  will 
is  liable  to  his  landlord  for  the  burning  of  the  building  let,  or  caused 
by  negligence  in  guarding  a  fire  kindled  for  the  purpose  of  heating 
the  building. 

The  law  of  negligence  has  been  largely  developed  in  recent  times, 
and  it  is  argued  that  there  is  no  sound  reason  why  it  should  not  be 
applied  in  the  same  manner  to  real  property  as  to  personal,  and  to 
tenancies  at  will  as  well  as  to  tenancies  for  a  term.  It  may  well  be 
doubted  whether  the  existing  condition  of  the  law  of  negligence  is 
altogether  satisfactory,  and  whether  it  would  be  wise  to  establish 
an  unlimited  liability  to  his  landlord,  on  the  part  of  every  tenant  at 
will  of  real  property,  for  every  injury  occasioned  by  any  act  of  neg- 
ligence of  himself  or  his  servants,  in  the  use  of  the  property. 
However  this  may  be,  we  do  not  feel  at  liberty  to  overturn  long- 
established  rules  of  law  governing  real  property. 

We  are  not  in  this  case  required  to  consider  the  consequences  of 
the  negligent  setting  or  guarding  of  fires,  set  for  other  purposes 
than  such  as  are  necessary  to  render  the  tenement  fit  for  occupa- 
tion, and  in  other  places  than  those  constructed  or  intended  for  the 
use  of  fires  in  heating  the  premises  let.  It  is  competent  for  land- 
lords and  tenants  to  make  in  writing  any  stipulations  they  see  fit. 
When  there  is  no  writing,  and  the  tenant  takes  the  precarious  estate 
of  a  tenancy  at  will,  we  think  it  has  been  generally  understood  that 
the  tenant  is  not  liable  for  the  burning  of  the  tenement  let,  occa- 
sioned by  his  negligence  or  that  of  his  servants  in  the  keeping  of 
fires  set  for  the  purpose  of  heating  the  premises,  and  in  the  place 
designed  for  that  purpose,  so  that  they  may  be  fit  for  occupation. 
The  fact  that  no  action  can  be  found  to  have  been  maintained  for 
this  cause  is  strong  evidence  of  this.  The  ancient  law  has  been 
acquiesced  in,  and,  consciously  or  unconsciously,  the  cost  of  insur- 
ance to  the  landlord,  or  the  value  of  the  risk,  enters  into  the 
amount  of  the  rent.  We  think  on  this  part  of  the  case  the  excep- 
tions should  be  sustained. 

If  the  law  were  to  be  established  anew,  it  might,  with  much  force, 
be  contended  that  the  test  of  the  liability  of  the  defendants  in  this 
case  ought  to  be  the  same  as  to  all  of  the  property  destroyed;  but 
it  would  deserve  consideration  whether,  in  such  a  case  as  this,  it 
would  not  be  more  reasonable  t<>  hold  the  defendants  liable  only  for 
^ross  negligence  amounting  to  reckless  conduct. 


III.  i.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     44I 

The  existing  law  has,  however,  introduced  many  distinctions.  A 
bailee  of  chattels  for  hire  is  liable  only  for  the  want  of  ordinary 
care;  but  if  the  bailee  promises  to  return  the  chattel  absolutely, 
then  he  is  liable,  although  the  chattel  is  destroyed  by  inevitable 
accident.     Harvey  v.  Murray,  136  Mass.  377. 

The  obligation  of  tenants  under  a  written  lease  to  their  landlords, 
except  so  far  as  statutes  have  imposed  arbitrary  liabilities,  are 
determined  by  the  construction  of  the  lease.  But  landlords  are  at 
common  law  exempt  from  many  liabilities  towards  their  tenants  for 
the  condition  of  the  premises,  which  they  are  under  towards 
strangers  who  are  lawfully  upon  the  premises  while  in  their  posses- 
sion. Bowe  v.  Hunking,  135  Mass.  380;  Woods  v.  JVaumkeag  Steam 
Cotton  Co.    134  Mass.  357. 

Disregarding  the  use  of  fire  in  clearing  land  and  for  other  agri- 
cultural purposes,  and  confining  ourselves  to  the  case  at  bar,  which 
is  the  use  of  fire  in  stoves  for  the  purpose  of  heating  the  building, 
it  is  manifest  that,  in  many  cases,  prudence  might  require  a  recon- 
struction of  the  chimneys  and  the  purchase  of  new  stoves.  In 
many  cases  it  would  be  difficult  to  determine  how  far  the  bad  con- 
dition of  the  premises  contributed  to  the  injury  occasioned  by  the 
fire.  We  think  the  reasonable  rule  is  that  if  landlords  would  pro- 
tect themselves  from  the  mere  negligence  of  their  tenants,  they 
should  take  a  written  lease,  with  proper  covenants;  and  that  a  ten- 
ant at  will  is  not  liable  to  his  landlord  for  the  mere  negligence  of 
himself  or  his  servants  in  kindling  or  guarding  fires  in  stoves  or 
chimneys  for  the  purpose  of  heating  the  premises;  but  that  he  is 
liable  for  wilful  burning,  and  also  for  such  gross  negligence  as 
amounts  to  reckless  conduct.  By  the  terms  of  the  report  the  ver- 
dict is  to  be  set  aside  and  a 

New  trial  granted.1 

1  But  see  Robinson  v.  Wheeler,  25  N.  Y.  252  (1862),  p.  259,  where  Wright,  J., 
says:  "The  judge  charged  the  jury  that  the  plaintiff  could  recover  for  the 
wood-shed  without  showing  that  the  defendant  set  fire  to  it  on  purpose,  if  it  was 
burned  through  his  negligence.  The  tenant  was  answerable  for  waste  of  the 
premises  through  his  negligence  ;  and  although  it  was  argued  in  the  complaint 
that  the  defendant  wrongfully  set  fire  to  and  destroyed  the  wood-shed,  and  it 
turned  out  from  the  proof  that  he  had  negligently  set  fire  to  :t,  and  it  was 
burned  up,  the  plaintiff  could  recover.  That  was  this  case.  It  was  the  same 
kind  of  waste,  the  complaint  arguing  that  it  was  committed  wrongfully,  and  the 
proof  showing  that  it  was  done  negligently."  —  Ed. 


442         USE   OF    LAND    BY    PARTICULAR   TENANT.      [PT.  III.  CH.  II. 

c.   Equitable  waste. 

VANE  v.  LORD  BARNARD. 

2  Vernon  Chancery  (Eng.;,  738.  —  1716. 

The  defendant  on  the  marriage  of  the  plaintiff,  his  eldest  son, 
with  the  daughter  of  Morgan  Randyll,  and  ^"10,000  portion,  settled 
inter  alia  Raby  Castle  on  himself  for  life,  without  impeachment  of 
waste,  remainder  to  his  son  for  life,  and  to  his  first  and  other  sons  in 
tail  male. 

The  defendant,  Lord  Barnard,  having  taken  some  displeasure 
against  his  son,  got  two  hundred  workmen  together,  and  of  a  sud- 
den, in  a  few  days,  stript  the  castle  of  the  lead,  iron,  glass-doors, 
and  boards,  etc.,  to  the  value  of  ^3,000. 

The  court  upon  filing  the  bill,  granted  an  injunction  to  stay  com- 
mitting of  waste,  in  pulling  down  the  castle;  and  now,  upon  the 
hearing  of  the  cause,  decreed,  not  only  the  injunction  to  continue, 
but  that  the  castle  should  be  repaired,  and  put  into  the  same  con- 
dition it  was  in,  in  August,  1714;  and  for  that  purpose  a  commis- 
sion was  to  issue  to  ascertain  what  ought  to  be  repaired,  and  a 
master  to  see  it  done  at  the  expense  and  charge  of  the  defendant, 
the  Lord  Barnard;  and  decreed  the  plaintiff  his  costs. 


STEVENS  v.  ROSE. 
69  Michigan,  259.  —  1888. 


Long,  J.  —  *  *  *  It  is  claimed  by  the  defendant  that  whether 
the  defendant  had  a  right  or  not  to  remove  the  building,  as  an  ordi- 
nary tenant,  during  his  tenancy,  he  had  such  right  under  his  life 
lease;  that  the  clause,  "  to  have  and  to  hold,  to  use  and  control  as 
he  thinks  proper,  during  his  natural  life,"  removes  all  restrictions, 
so  far  as  any  of  the  acts  indicated  by  the  record  are  concerned;  that 
the  words,  "  to  have  and  to  hold,"  gave  him  certain  legal  rights  in 
the  land  that  were  well  known  and  well  guarded,  and  by  which  he 
had  his  fire-wood,  necessary  timber  for  repairs,  the  full  use  of  all  the 
arable  and  pasture  land,  and  his  administrator  was  entitled  to  the 
usual  growing  crops  if  the  tenant  should  die  leaving  any  unharvested 
crops  growing  upon  the  place;  that  the  mere  tenant  for  life,  under 
the  words,  "  to  have  and  to  hold,"  having  all  these  privileges,  the 
addition  of  the  words,  "  to  use  and  control  as  he  thinks  proper," 
imply  the  widest  authority,  removing  all  limitations  to  the  defend- 
ant's use  of  the  leased   premises,  and  have  them,   and    everything 


III.  i.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     443 

upon  them,  so  far  as  the  lease  governing  the  case,  in  his  possession, 
with  all  the  rights  and  authority  of  the  owner  of  the  land;  and  if 
there  be  any  limitation  or  restriction  that  even  a  court  of  equity 
would  control,  in  a  lease  without  impeachment  for  waste,  such 
restrictions  are  removed  by  the  language  employed  here,  and  that 
such  language  is  at  least  of  equal  force  and  significance  as  the 
words,  "  without  impeachment  of  waste." 

On  the  other  hand,  it  is  contended  by  counsel  for  plaintiff  that  the 
practice  of  leasing  without  impeachment  of  waste  has  not  obtained 
in  the  United  States,  and,  that  being  the  case,  the  words  used  must 
very  clearly  import  that  the  tenancy  is  to  be  without  impeachment 
of  waste,  before  a  court  will  so  construe  them. 

The  action  of  waste  under  the  old  English  practice  was  a  remedy 
given  for  injury  to  lands,  houses,  woods,  etc.,  by  a  tenant  thereof 
for  life  or  years,  to  the  injury  or  prejudice  of  the  heir,  or  of  him  in 
the  reversion  or  remainder.  It  was  either  voluntary  or  permissive  — 
the  one  by  actual  design;  the  other  arising  from  mere  negligence 
and  want  of  sufficient  care.  The  action  was  partly  founded  upon 
the  common  law,  and  partly  founded  upon  the  statute  of  Gloucester, 
and  was  a  mixed  action;  real  so  far  as  it  recovered  the  realty  injured; 
and  personal  so  far  as  it  covered  the  damages  for  the  injury. 
Originally,  and  under  the  old  practice,  the  action  was  brought  for 
both  of  these  specific  purposes,  and,  if  waste  was  proved  on  the  trial, 
the  plaintiff  recovered,  not  only  the  premises  injured  but  also  the 
damages  he  had  sustained  by  reason  of  the  injury. 

The  action  for  this  double  purpose,  having  fallen  into  disuse,  was 
finally  abolished  in  England  by  the  statute  of  3  and  4  William  IV., 
c.  27.  In  this  country,  although  adopted  in  some  of  the  States,  it 
has  been  but  little  used;  having  been,  in  practice,  virtually  super- 
seded by  the  action  on  the  case  in  the  nature  of  waste  for  the  recovery 
of  damages  merely,  or  by  bill  in  equity.  In  our  own  State  this 
action  on  the  case  is  authorized  by  chapter  271,  How.  Stat.,  above 
cited.  These  provisions  of  our  statute  on  this  subject  are  in  accord- 
ance with  the  legal  practice  which  has  been  adopted,  and  long  since 
fully  established,  in  England  and  in  this  country. 

Tenants  for  life,  not  made  impeachable  for  waste  by  the  person 
granting  the  estate,  are  liable  for  both  commissive  and  permissive 
waste.  The  real  intention,  however,  of  the  clause,  "  without 
impeachment  for  waste,"  is  to  enable  the  tenant  to  do  many  things, 
such  as  cutting  wood,  opening  new  mines,  etc.,  which  would  other- 
wise at  the  common  law  amount  to  waste;  but  these  words  do  not 
operate  as  a  license  to  the  tenant  to  destroy  the  estate,  or  to  commit 
malicious  waste,  such  as  cutting  down  fruit-bearing  trees,  or  trees 


444        USE   OF   LAND    BY    PARTICULAR   TENANT.       [PT.  III.  CII.  II. 

which  serve  for  shade  or  ornament.  If  he  is  tenant  "  without 
impeachment  for  waste,"  he  has  the  same  right  to  cut  timber,  work 
mines,  etc.,  for  his  own  use,  as  the  owner  of  the  inheritance;  but 
those  words  do  not  justify  him  in  demolishing  the  buildings,  or 
doing  that  which  operates  as  destructive  or  malicious  waste.  Wood, 
Landl.  and  Ten.  p.  711,  §  426;  Leeds  v.  Anherst,  14  Sim.  357;  Aston 
v.  Aston,  1  Ves.  Sr.  265;  Vane  v.  Lord  Barnard,  2  Vern.  738.  The 
words  are  not  to  be  treated  as  importing  a  license  to  destroy  or 
injure  the  estate,  but  to  do  all  reasonable  acts,  consistent  with  the 
preservation  of  the  estate,  which  otherwise  might  in  law  be  waste. 

If,  then,  these  words  in  the  lease,  "  to  have  and  to  hold,  to  use 
and  control  as  he  thinks  proper,  for  his  benefit  during  his  natural 
life,"  be  construed  as  leasing  without  impeachment  of  waste,  as 
defendant's  counsel  claim  they  must  be,  the  defendant  would  have 
no  right  to  tear  down  and  carry  away  the  buildings  erected  on  the 
premises,  under  the  circumstances  of  this  case.  The  life  tenant, 
even  under  a  lease  without  impeachment  for  waste,  owes  a  duty  to 
the  reversioner  or  remainderman  to  preserve  in  a  reasonable  manner 
the  buildings,  and  all  fruit  and  ornamental  trees,  on  the  estate;  and 
he  has  no  right  to  commit  any  malicious  waste,  or  to  destroy  such 
buildings  or  trees.  While  there  is  no  doubt  he  has  a  right  to  cut 
and  take  timber  for  his  own  use,  the  same  as  the  owner  of  the 
inheritance,  yet  in  this  case  it  was  contended  by  plaintiff,  and  evi- 
dence was  offered  tending  to  prove  the  fact,  that  these  fourteen  oak 
trees  were  left  for  ornament  and  shade;  and  the  jury  found,  under 
questions  put  by  defendant's  counsel,  that  they  were  fit  for  other 
purposes  than  fire  wood,  and  were  not  necessary  to  the  defendant 
for  such  purpose,  and  thus,  in  effect,  found  that  they  were  saved 
and  kept  for  the  purposes  of  ornament  and  shade.  There  was  an 
abundance  of  timber  only  two  miles  distant  from  the  dwelling  of 
defendant,  which  was  conveyed  to  him  under  the  same  lease,  and 
from  this  he  had  a  right  to  cut  his  fire-wood,  and  he  had  a  right, 
also,  to  cut  such  other  timber  as  he  pleased,  if  the  lease  is  one 
without  impeachment  of  waste.  These  words  were  inserted  in  the 
lease  for  the  purpose,  clearly,  of  giving  the  tenant  some  greater 
rights  than  an  ordinary  life  tenant.  They  are  words  seldom 
employed  in  leases,  and  they  must  be  construed  most  strongly 
against  the  grantor. 

In  Goodright  v.  Barron,  11  East,  220,  a  will  was  executed  with 
this  clause: 

Also,  I  give  and  bequeath  to  my  wife,  Elizabeth,  whom  I  likewise 
make  my  soli-  executrix,  all  ami  singular  my  lands,  messuages,  and 
tenements,  by  her  freely  to  be  possessed  and  enjoyed." 


III.  2.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     445 

In  an  action  of  ejectment,  Lord  Ellenborough,  giving  the  opinion 
of  the  court,  and  speaking  of  this  clause  in  the  will,  says: 

"  But  these  words  may  have  been  meant  to  make  her  dispunishable 
of  waste,  for  which,  as  tenant  for  life  only,  she  would  have  been 
liable.  ...  If  the  words  '  during  her  life  '  had  been  added, 
that  would  have  made  the  intent  clear  in  one  way." 

In  Webster  v.  Webster,  33  N.  H.  21,  the  court  say: 

"  It  would  seem  that  no  particular  form  of  words  is  necessary  to 
make  an  estate  for  life  without  impeachment  for  waste." 

We  think  the  words  employed  in  this  lease  clearly  import  a  leasing 
without  impeachment  for  waste,  and  that  the  defendant  has  a  right 
to  do  all  those  acts  which  such  a  tenant  may  exercise.  We,  however, 
find  no  error  in  the  record,  under  the  circumstances  of  this  case,  in 
view  of  the  character  of  the  building  removed,  and  the  trees  cut 
and  carried  away. 

The  judgment  must  be  affirmed  with  costs.1 


2.   In  What  Waste  Consists. 
a.  In  respect  of  houses  and  other  structures. 


CANNON  v.  BARRY. 
59  Mississippi,  289.  —  1881 
[Reported  herein  at  p.  433.]* 


b.  As  to  wood-lanas. 

JOHNSON  v.  JOHNSON. 

18  New  Hampshire,  594.  —  1847. 

Case  in  the  nature  of  an  action  of  waste.  Verdict  for  plaintiff, 
subject  to  opinion  of  this  court. 

Gilchrist,  J. — The  words  of  the  devise  are:  "  I  give  and  devise 
to  my  wife,  during  her  natural  life,  the  use  and  income  of  all  my  real 

1  This  was  an  action  on  the  case  for  waste  brought  under  chap.  271  How,  Stat., 
but  as  will  be  seen  equitable  principles  are  discussed  and  enforced.  For 
"equitable  waste"  against  owner  in  fee,  see  Turner  v.  Wright,  supra,  p.  391. 
—  Ed. 

2  See  also  the  other  cases  under  permissive  waste. — Ed. 


446        USE   OF   LAND    BY    PARTICULAR   TENANT.      [FT.  III.   CH.  II. 

estate,"  and  "  I  give  and  devise  to  my  brother,  Moses  Johnson,  one- 
eighth  part  of  all  my  estate  not  herein  disposed  of,  which  may  be 
left  after  the  decease  of  my  wife,"  etc. 

The  defendant  is,  therefore,  tenant  for  life,  and  the  plaintiff  has 
the  remainder,  and  is  entitled  to  sue  for  waste  committed  upon  the 
estate. 

The  tenant  for  life,  committing  waste,  is  liable  in  this  form  of 
action  to  the  remainderman,  unless  she  is,  by  the  terms  by  which 
her  estate  has  been  created,  exempted  from  those  restraints  which, 
since  very  early  times,  have  qualified  that  interest.  In  other  words, 
unless  she  has  an  estate  for  life,  without  impeachment  of  waste,  she 
is  liable.  2  Blackst.  Com.  283;  Sackett  v.  Sackelt,  8  Pick.  314; 
Chase  v.  Haselton,  7  N.  H.  Rep.  171. 

It  is  impossible  to  perceive,  in  the  words  by  which  this  life  estate 
has  been  created,  any  evidence  of  the  testator's  intention  to  dispense 
with  the  ordinary  restraints  and  qualifications  which  attend  estates 
for  life  in  general.  Nor  do  the  circumstances  and  the  relation 
between  the  parties,  adverted  to  in  the  argument,  or  the  terms  in 
which  the  remainder  over  is  limited,  raise  the  presumption  that  such 
an  intention  was  in  the  mind  of  the  testator,  much  less  do  they 
amount  to  an  expression  of  such  a  purpose.  The  case  is  certainly 
not  stronger  than  that  of  Chase  v.  Haselton,  7  N.  H.  Rep.  171,  in 
which  the  grant  was  by  way  of  a  quit  claim  of  all  the  grantor's 
right  and  interest  in  the  land  for  the  life  of  the  grantee,  which  was 
held  not  to  authorize  waste,  or  to  deprive  the  grantor  of  his  right 
to  recover  for  waste  committed. 

What  amounts  to  waste  is  a  question  not  always  free  from  doubt 
and  difficulty.  The  tenant  for  life  may  have  reasonable  estovers  for 
house-bote,  and  may,  from  trees  commonly  used  for  fuel,  take  suffi- 
cient to  supply  the  house  upon  the  estate.  Blackst.  Com.  ubi  supra. 
But  this  right  has  not  been  construed  to  be  a  right  to  sell  wood  from 
the  estate. 

In  Paddleford  v.  Paddleford,    7   Pick.  152,  it  was  held  that  trees, 

which  were  of  a  quality  that  would  have  justified  their  use  by  the 
tenant  for  fuel,  could  not  lawfully  be  sold  or  exchanged  for  fuel  to 
be  consumed  upon  the  estate.  And  in  this  State  in  the  case  of 
Fulla  v.  IVason,  7  N.  H.  Rep.  341,  it  was  decided  that  wood  could 
not  be  sold  by  the  tenant  for  life,  although  having  the  right  to  con- 
sunk-  it  even  in  a  larger  quantity  than  that  which  was  sold.  The  act 
of  selling  was.  in  both  the  cases  cited,  distinguished  from  the  exer- 
cise of  the  personal  right  of  consuming,  in  a  particular  manner,  that 
which  belonged  i<<  the  remainderman,  and  was  attached  to  the 
estate,  and  was  held  to  be  waste. 


III.  2.]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.      447 

The  tenant,  in  the  present  case,  sold  a  portion  of  the  trees,  to  pay 
the  expense  of  cutting  and  conveying  to  her  door  those  which  she 
had  a  right  to  take  for  fuel.  This  act  plainly  transcends  the  limit  of 
her  rights,  as  fixed  by  cases  cited;  for  if  she  can  sell  for  one  pur- 
pose, she  may  do  so  for  another. 

The  trees  are  parcel  of  the  realty,  and  belong  to  the  remainder- 
man, subject  only  to  the  right  of  the  tenant  to  use  a  portion  of  them 
for  special  purposes.  The  growth  and  the  decay  of  the  forest  are 
of  no  concern  to  him.  If  a  tempest  uproots  the  trees,  the  remain- 
derman is  held  to  be  entitled  to  carry  them  away,  and  in  certain 
cases  the  court  of  chancery  has  directed  decaying  timber  to  be  cut 
and  sold  for  the  benefit  of  the  same  party,  saving  always  the  rights 
of  the  life  tenant,  who  is  to  be  indemnified  for  the  loss  of  his  usu- 
fructuary interest  in  them.  Bewick  v.  Whitfield,  3  P.  W.  267;  s.  c, 
2  do.  240. 

There  is  no  principle  which  would  have  justified  the  admission  of 
evidence  of  what  the  testator  said,  to  vary  the  meaning  of  the  words 
of  the  will  which  he  executed. 

Judgment  on  the  verdict. 


WHITE  v.  CUTLER. 

17  Pickering  (Mass.),  248.  —  1835. 

Trespass  quare  clausum  /regit  and  for  taking  away  a  quantity  of 
wood  alleged  to  be  the  property  of  plaintiff. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  Court.  — The  question 
in  the  present  case,  is  whether  a  tenant  in  dower  or  her  lessee  has  a 
right  to  cut  wood  upon  the  dower  estate,  for  sale,  to  be  removed  and 
not  used  or  consumed  upon  or  in  connection  with  the  estate. 

We  think  that  a  reference  to  a  few  principles,  which  have  been 
adopted  and  acted  upon  in  decided  cases,  in  our  own  State,  will 
lead  to  a  satisfactory  decision  of  this  question. 

It  was  in  effect  decided  in  Sargeant  v.  Toivne,  10  Mass.  R.  307, 
that  a  tenant  for  life  has  no  right  to  cut  growing  trees,  that  such 
cutting  would  be  waste,  and  that  wild  and  uncultivated  land  cannot 
be  deemed  estate  yielding  annual  rents  or  profits. 

In  the  case  of  Conner  v.  S/iep/ierd,  15  Mass.  R.  164,  it  was  decided, 
that  in  this  commonwealth  a  widow  is  not  entitled  to  dower  in  wild 
and  uncultivated  lands,  held  separately  and  distinct  from  houses, 
cultivated  lands  and  other  improved  estate,  first,  because  they  yield 
no  annual  profit,  and  secondly,  because  the  widow  could  not  make 


448         USE   OF   LAND    BY    PARTICULAR   TENANT.      [PT.  III.  CII.  II. 

the  only  beneficial  use  of  them,  of  which  they  are  capable,  without 
committing  waste  and  forfeiting  the  estate.  These  reasons  apply  as 
well  to  the  case  of  a  wood-lot  situated  in  the  midst  of  a  cultivated 
country,  as  to  the  forest  lands  in  their  original  state.  But  the  Chief 
Justice,,  in  delivering  the  opinion  of  the  Court  in  this  case,  takes 
care  in  terms  to  limit  its  operation  to  the  case  of  woodlands  not  used 
or  connected  with  a  cultivated  farm,  or  other  improved  estate. 

In  the  case  of  Webb  v.  To7vnsend,  i  Pick.  21,  the  general  rule,  that 
a  widow  is  not  dowable  of  wild  lands,  is  confirmed,  and  it  was 
placed  more  distinctly  upon  the  ground,  that  as  a  widow  is  to  be 
endowed,  not  according  to  the  value  of  the  land,  but  according  to 
the  value  of  the  annual  rents  and  profits,  and  as  uncultivated  lands 
yield  no  rents  and  profits,  dower  therein  would  be  nugatory  and  of 
no  value. 

But  in  a  subsequent  case,  While  v.  Willis,  7  Pick.  143,  it  was  held 
that  a  lot  of  wild  land,  which  had  been  used  by  the  husband  in  con- 
nection with  his  house  and  cultivated  land,  to  supply  wood  for  build- 
ings, fences  and  fuel,  might  be  properly  assigned  to  a  widow  as  part 
of  her  dower,  to  enable  her  to  take  fuel  and  timber  for  repairs.  It 
was  also  suggested,  that  a  widow  would  have  no  right  to  take  fire- 
bote,  etc.,  from  lands  of  her  deceased  husband,  unless  the  lands  from 
which  it  is  taken,  were  included  in  those  assigned  as  her  dower. 

A  distinction  was  urged  in  the  argument,  between  woodlands,  kept 
by  the  owners  to  raise  wood  for  sale,  for  purposes  of  profit,  and  wild 
lands,  and  that  it  would  be  hard  to  deprive  a  widow  of  her  dower  in 
such  lands,  of  which  the  raising  of  wood  for  sale  may  be  considered 
as  the  most  profitable  use.  But  we  think  the  answer  results  from 
the  legal  principles  on  which  the  foregoing  cases  are  settled.  Such 
estate  yields  no  annual  profit.  The  owner  may  make  a  profit  of  the 
land,  but  it  is  the  exercise  of  the  rights  of  a  tenant  in  fee,  which  a 
tenant  for  life  by  law  does  not  enjoy,  that  of  felling  growing  trees. 
The  result,  we  think,  is,  that  a  widow  is  not  to  be  endowed  of  a  lot 
of  growing  wood  and  timber,  although  kept  purposely  to  raise  wood 
and  timber  as  objects  of  profit,  provided  that  it  is  not  assigned  to 
her  as  part  of  her  dower,  in  connection  with  buildings  or  cultivated 
lands.  But  when  woodland  is  so  connected  and  used,  it  may  be 
included  in  the  assignment  of  dower,  to  be  used  and  enjoyed  by  the 
widow,  or  those  holding  under  her. 

But    the  right  of   the  widow  thus  acquired  is  that  of  reasonable 

estovers,  under  which  may  be  included  firebote  or  the  necessary  fuel 

for   the   supply   of   the   dower  estate.      But  this  right  of  reasonable 

vers   is   confined    strictly  to   wood   and   timber  sufficient  for  the 

Supply  of  the  (state,  and  it  must  be  actually  applied,  used  and  con- 


III.  2.]     SPECIAL   RESTRICTIONS  PROTECTING  INHERITANCE.     449 

sumed  upon  the  estate,  or  for  purposes  connected  with  its  proper 
use,  occupation  and  enjoyment.  It  has  been  recently  decided,  that 
cutting  growing  trees,  to  be  exchanged  for  other  wood  to  be  used  as 
fuel  or  timber  on  the  estate,  was  not  within  the  right  of  a  tenant  in 
dower,  but  in  law  was  deemed  waste.  Paddelford  v.  Paddelford,  7 
Pick.  152. 

A  fortiori,  the  cutting  of  wood  for  sale,  the  proceeds  of  which  are 
not  to  be  used  or  appropriated  upon  the  estate  or  in  connection  with 
it,  is  not  admissible  under  the  limited  right  of  taking  reasonable 
estovers. 

If  the  plaintiff,  as  lessee  of  the  tenant  in  dower,  had  no  right  to 
cut  the  growing  wood,  the  defendant,  as  having  the  next  estate  of 
inheritance,  had  a  right  to  take  the  wood  when  severed.  Blakes  v. 
Anscombe,  4  Bos.  and  Pul.  25. 

Plaintiff  nonsuit.1 


McGregor  v.  brown. 

10  New  York,  114.  —  1854. 


Denio,  J.  —  I  am  of  opinion  that  two  errors  were  committed  on 
the  trial  of  this  cause.  First.  The  farm  which  the  defendant  held 
under  a  lease  from  the  plaintiff  contained  about  two  hundred  and 
thirty  or  two  hundred  and  forty  acres,  seventy  or  eighty  acres  of 
which  remained  in  forest  and  the  remainder  was  cleared.  The 
defendant  was  proved  to  have  cut  down  about  an  acre  of  the  timbered 
land;  and  he  sold  a  part  of  the  wood  in  market.  He  was  permitted 
to  prove,  against  an  objection  by  the  plaintiff,  that  he  applied  to  the 
plaintiff  for  two  or  three  acres  of  wood,  saying  that  he  had  more 
hay  to  winter  cattle  than  he  had  pasture  to  pasture  them,  and  that 
he  would  seed  down  the  land  that  he  cleared;  that  the  plaintiff  said 
that  the  defendant  was  welcome  to  the  wood  if  he  would  clear  up 
and  seed  down  the  land  on  which  it  stood;  and  the  jury  were 
charged  that  if  this  was  an  agreement  for  the  mutual  benefit  of  the 
parties,  and  the  wood  was  cut  in  pursuance  of  it,  it  was  a  defence  to 
the  action.  The  action  was  for  waste,  and  the  following  statutory 
provision  applies  to  the  case:  "If  .  .  .  any  tenant  .  .  . 
for  term  of  life  or  years,  .  .  .  shall  commit  waste 
of  the  houses,  .  .  .  lands  or  woods,  .  .  .  without  a 
special  and  lawful  license  in  writing  so  to  do,  they  shall  respectively 
be  subject  to  an  action  of  waste."     2  R.  S.  334,  §  i.s    The  object  of 

1  Tenant  by  curtesy  may  take   reasonable  estovers  only.     Going  beyond  that 
is  waste.     Armstrong  v.    Wilson,  60  111.,  226.  —  Ed. 

2  See  Code  Civ.  Proc.  J;  1657.  —  Ed. 

LAW  OF  PROP.    IN  LAND 2Q. 


450    USE  OF  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  CH.  II. 

the  qualification  respecting  the  evidence  of  a  license  is  the  same  with 
those  provisions  of  the  statute  of  frauds  requiring  certain  trans- 
actions to  be  put  in  writing,  namely,  to  prevent  agreements  from 
being  set  up  by  false  or  mistaken  oral  testimony.  I  do  not  think  the 
annexing  a  condition  to  the  license  (for  this  is  what  the  evidence 
at  most  amounted  to)  renders  the  parol  proof  of  it  any  more  com- 
petent than  it  would  otherwise  have  been.  Nothing  like  an  agree- 
ment was  shown.  The  defendant  did  not  agree  to  clear  or  seed 
down  any  of  the  woodland,  but  only  that  he  would  seed  down  what 
he  should  clear.  It  was  a  clear  case  of  a  license  proved  by  parol 
against  the  express  provision  of  the  statute.     *     *     * 

The  judgment  of  the  court  below  should  be  reversed  and  a  new 
trial  granted. 

Ordered  accordingly. 


c.   Changes  in  manner  of  using  land.     Good  husbandry. 

The  Assistant  Vice-Chancellor  in  SARLES  v.  SARLES. 

3  Sandford's  Chancery  (N.  Y.),  6oi.  —  1S46. 

My  conclusion  is  that  there  is  not  enough  proved  against  Samuel 
Sarles,  to  authorize  a  decree  against  him  in  respect  of  the  hay  and 
meadow  grass.  His  most  unjustifiable  act,  in  my  view,  was  the 
annual  removal  of  the  bog  grass.  For  this,  so  far  as  it  was  an  injury 
to  the  freehold,  he  is  liable  to  account. 

So  in  respect  of  the  overtillage  and  bad  management  of  the  land. 
With  the  exception  of  the  field  back  of  the  barn  *  *  *  I  do  not 
think  the  testimony  clear  to  establish  the  alleged  bad  husbandry. 
*  *  *  The  injury  t0  the  fee  growing  out  of  that  field,  is  waste, 
which  will  properly  be  included  in  the  account  to  be  taken. 


Green,  C.  J.,  in  CLEMENCE  v.  STEERE. 

1  Rhode  Island,  272.  —  1850. 

The  defendant  is  charged  with  having  converted  meadow  land 
into  pasture  land.  In  England  this  would  be  waste.  But  we  are 
not  to  apply  the  English  law  too  strictly.  Our  lands  are  in  many 
respects  cultivated  differently  from  land  in  England;  and  this  differ- 
ence is  to  be  taken  into  account.  Here  it  is  necessary  to  show  that 
the  change  is  detrimental  to  the  inheritance  and  contrary  to  the 
ordinary   course   of    good    husbandry.     If    in  this  case  the  change 


III.  2.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     451 

injured   the   farm,  or  was  such  a  change  as  no  good  farmer  would 
make,  it  is  waste.     *     *     * 

It  is  said  that  the  pastures  have  been  permitted  to  become  over- 
grown with  brush.  In  England  that  would  be  waste,  but  you  would 
not  expect  so  high  a  state  of  cultivation  in  Burrillville  as  in  Eng- 
land, or  as  in  the  vicinity  of  a  populous  city.  There  must  be  such 
neglect  in  cutting  the  brush  as  a  man  of  ordinary  prudence  would 
not  permit;  and  if  there  was  in  this  case  such  neglect,  it  is  waste. 


PYNCHON  v.  STEARNS. 
11  Metcalf  (Mass.),  304.  —  1846. 

Wilde,  J.  —  This  is  an  action  of  waste,  and  the  case  comes  before 
us  on  exceptions  to  the  instruction  to  the  jury  at  the  trial.  The 
premises  described  in  the  writ  were  formerly  the  property  of  Edward 
Pynchon,  and  were  devised  by  him  to  Susan  Pynchon,  his  wife,  so 
long  as  she  should  remain  his  widow,  remainder  to  the  plaintiff. 
The  defendant  holds  under  an  assignment  from  the  said  Susan. 

It  was  proved  at  the  trial,  that  the  plaintiff  had  taken  of  the 
defendant  a  lease  of  part  of  the  premises  during  the  life  of  the  said 
Susan;  and  it  was  ruled  by  the  court  that,  as  to  that  part  of  the 
premises,  the  action  could  not  be  maintained.  That  this  ruling  was 
correct,  cannot,  we  think,  admit  of  a  doubt.  By  this  lease  to  the 
plaintiff,  he  became  the  owner  of  the  whole  estate.  The  estate  for 
years  immediately  merged  in  the  remainder  in  fee;  and  the  plaintiff 
entered,,  as  it  is  understood,  before  the  alleged  waste.  If,  however, 
the  lease  had  been  given  after  the  waste,  no  action  of  waste  could 
be  maintained  after  the  merger  of  the  estate,  and  after  the  entry  of 
the  plaintiff  under  the  lease  from  the  defendant. 

If  it  be  said  that  the  reservation  in  the  lease  to  the  plaintiff  pre- 
vented the  merger,  the  answer  is,  that  the  reservation  did  not,  and 
could  not,  by  the  well  established  rules  of  construction,  limit  or  divest 
the  estate  expressly  demised  to  the  plaintiff.  The  defendant  only 
reserved  the  right  to  erect  buildings  on  the  premises;  but  no  estate 
for  life  or  for  a  term  of  years  is  reserved ;  and  if  it  had  been  reserved, 
it  would  have  been  repugnant  to  the  terms  of  the  lease  limiting  and 
demising  the  estate  for  life  to  the  plaintiff. 

As  to  the  stipulation  for  the  payment  of  rent,  we  consider  that  as 
a  personal  covenant  of  the  plaintiff.  No  right  of  entry  is  reserved 
for  the  nonpayment  of  rent;  and  that  covenant  can  no  more  prevent 
a  merger  than  it  can  prevent  the  vesting  of  the  estate  demised. 


452    USE  OF  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  CH.  II. 

As  to  the  alleged  acts  of  waste  on  the  other  part  of  the  premises, 
the  plaintiff  relied  upon  sundry  facts  which  are  not  disputed; 
namely,  that  the  defendant  had  opened  a  way  through  the  premises 
from  one  public  highway  to  another;  and  that  the  defendant  had 
subverted  the  soil,  by  digging  out  part  of  the  soil  for  cellars  of 
houses  by  him  erected;  and  that  he  had  ploughed  the  lands,  dug 
drains,  and  had  drawn  in  large  quantities  of  earth,  thereby  raising 
the  land  and  changing  the  surface  thereof.  The  defendant  intro- 
duced evidence  to  show  that  these  acts  of  the  defendant  were  bene- 
ficial and  not  prejudicial  to  the  plaintiff,  and  did  not  constitute 
waste.  On  this  evidence  the  jury  were  instructed  that  the  opening 
of  the  way  was  not  waste;  and  that  if  breaking  up  meadow  land 
occasionally  was  a  judicious  and  suitable  mode  of  husbandry,  the 
changing  the  surface  by  breaking  up  and  cultivating  it,  was  not 
waste;  and  that  the  removing  the  soil  for  the  building  of  houses, 
and  the  erecting  them,  and  digging  drains,  if  the  estate  on  the  whole 
would  be  equally  or  more  valuable  to  the  owner  of  the  inheritance, 
would  not  be  waste. 

The  general  rule  of  law  in  respect  to  waste  is,  that  the  act  must 
be  prejudicial  to  the  inheritance.  It  is  defined  by  Blackstone,  3  Bl. 
Com.  223,  to  be  "a  spoil  and  destruction  of  the  estate,  either  in 
houses,  woods,  or  lands."  It  is  true,  however,  that  it  has  been  held 
in  England,  that  to  change  the  nature  of  the  property  by  the  tenant, 
although  the  alteration  may  be  for  the  greater  profit  of  the  lessor, 
was  waste.  So  in  England,  if  the  tenant  converts  arable  land  into 
wood,  or  e  converso,  or  meadow  into  plough  or  pasture  land,  it 
is  waste.  Bac.  Ab.  Waste,  c.  1.  The  reasons  given  are,  that  it 
changes  the  course  of  husbandry,  and  the  evidence  of  the  estate. 
But  these  reasons  are  not  applicable  in  this  commonwealth,  and  con- 
sequently such  changes  here  do  not  constitute  waste,  unless  such 
changes  are  prejudicial  to  the  inheritance.  So  the  doctrine  is  laid 
down  by  Mr.  Dane,  and  it  is,  we  think,  supported  on  satisfactory 
reasons.  3  Dane  Ab.  219.  When  our  ancestors  emigrated  to  this 
country,  they  brought  with  them,  and  were  afterwards  governed  by, 
the  common  law  of  England ;  excepting,  however,  such  parts  as  were 
inapplicable  to  their  new  condition.  2  Mass.  534;  8  Pick.  316.  That 
the  principle  of  the  common  law  under  consideration  was  then  inap- 
plicable to  the  condition  of  the  country  is  obvious;  nor  has  it  been 
applicable  at  any  time  since;  for  it  has  been  the  constant  usage  of 
our  farmers  to  break  up  their  grass  lands  for  the  purpose  of  raising 
crops  by  tillage,  and  laying  them  down  again  to  grass,  and  otherwise 
to  <  hange  the  use  and  cultivation  of  their  lands,  as  occasions  have 
required.     A  conformity,  therefore,  to  this  usage,  cannot  be  deemed 


III.  2.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     453 

waste.  Even  in  England,  "if  a  meadow  be  sometimes  arable,  and 
sometimes  meadow,  and  sometimes  pasture,  the  ploughing  of  it  is 
not  waste."  Bac.  Ab.  Waste,  C.  1;  Com.  Dig.  Waste,  D.  4.  As 
to  the  effect  of  such  changes  upon  the  evidence  of  title  to  lands,  it 
is  evident  that  it  can  have  none  in  this  State.  Our  conveyances  are 
very  simple.  The  land  conveyed  is  described  by  metes  and  bounds, 
or  by  some  general  and  certain  description  of  its  limits,  without  any 
designation  of  the  kind  of  land  conveyed,  whether  it  be  arable  land 
or  grass  land,  wood  land  or  cleared  land,  pasture  or  meadow. 

As  to  the  other  acts  complained  of,  we  think  they  cannot  be 
deemed  waste,  unless  they  may  be  prejudicial  to  the  plaintiff;  and 
that  the  instructions  to  the  jury,  in  this  respect,  were,  therefore, 
correct.  To  erect  a  new  house  on  the  land  where  there  was  not  any 
before,  is  not  waste.  Bac.  Ab.  Waste,  C.  5.  So  there  seems  no 
authority  for  holding  that  the  opening  of  a  way  by  the  defendant, 
for  his  convenience,  and  draining  the  land  are  acts  of  waste.  And 
as  to  raising  the  land,  by  carrying  thereon  quantities  of  earth,  what- 
ever may  be  law  of  England,  it  is  not  in  this  commonwealth  waste, 
unless  it  may  be  prejudicial  to  the  plaintiff. 

The  ancient  doctrine  of  waste,  if  universally  adopted  in  this 
country,  would  greatly  impede  the  progress  of  improvement,  with- 
out any  compensating  benefit.  To  be  beneficial,  therefore,  the  rules 
of  law  must  be  accommodated  to  the  situation  of  the  country,  and 
the  course  of  affairs  here;  as  it  has  been  frequently  decided. 
Winship  v.  Pitts,  3  Paige,  259,  and  other  cases  cited  by  the  defend- 
ant's counsel. 

In  this  country,  it  is  difficult  to  imagine  any  exception  to  the  gen- 
eral rule  of  law,  that  no  act  of  a  tenant  will  amount  to  waste,  unless 
it  is  or  m,ay  be  prejudicial  to  the  inheritance,  or  to  those  entitled  to 
the  reversion  or  remainder. 

For  these  reasons,  we  are  of  opinion  that  the  instructions  to  the 
jury  were  correct. 

Judgment  on  the  verdict. 


d.    Opening  and  working  mines. 
Woodworth,  J.,  in  COATES  v.  CHEEVER 

1  Cowen  (N.  Y.),  460. —  1823. 

The  premises  in  question  contain  a  valuable  ore  bed,  which  was 
partially  opened  by  the  husband  of  the  appellant,  during  his  lifetime. 
Since  his  death,  the  owner    has   extended    this    opening   at   great 


454    USE  0F  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  Cii.  II. 

expense  and  with  very  great  success..  In  setting  off  dower,  the 
admeasurers  disregarded  the  increased  value  of  the  land  arising 
from  the  circumstance  of  its  containing  this  ore  bed.  They  esti- 
mated the  value,  considered  merely  with  a  view  to  its  agricultural 
improvement,  and  assigned  by  metes  and  bounds  sufficient  to  cover 
one-sixth  of  that  estimate,  carefully  avoiding  any  interference  with 
the  ore.  There  is  no  doubt  that  as  to  mines  in  general,  including 
beds  of  iron  ore,  if  they  are  unopened  at  the  time  of  the  owner's 
death,  his  widow  must  take  her  dower  in  other  land  merely.  The 
newly  opening  a  mine  is  waste,  and  the  widow,  having  only  an  estate 
for  life,  can  legally  do  no  act  which  injures  the  inheritance.  All 
the  cases  agree  in  this.  But  it  is  equally  clear,  that  if,  during  the 
husband's  lifetime,  mines  are  opened,  dower  in  them  is  properly 
assignable.  In  this  case,  the  admeasurement  must  accordingly  be 
set  aside.  The  admeasurers  must  assign  to  the  appellant  her  dower  in 
all  mines  which  were  opened  during  her  husband's  life ;  but  she  cannot 
profit  by  any  extension  of  that  opening.  The  admeasurers  should 
take  into  consideration  the  value  of  the  mine  as  far  as  it  was  opened 
during  the  husband's  life,  and  then  assign  the  dower,  either  by 
measuring  off  one-third  in  value  or  specifically  assigning  a  reasonable 
share  of  the  profits  at  short  periods.  The  case  of  Stoughton  v. 
Leigh,  i  Taunt.  402,  contains  the  rules  by  which,  1  think,  the  admea- 
surers ought  to  be  guided. 


In  Re  SEAGER  ESTATE. 

92  Michigan,  186.  —  1892. 

Petition  to  determine  right  of  Gertrude  McCabe  in  certain 
royalties. 

McGrath,  J.  —  *  *  *  Our  statute.  How.  Stat.,  §  5733,  gives 
to  the  widow  of  every  deceased  person  the  use  during  her  natural 
life  of  one-third  of  all  the  lands  whereof  her  husband  was  seised  of 
an  estate  of  inheritance  at  any  time  during  the  marriage,  unless  she  is 
lawfully  barred  thereof.  Other  sections  of  the  statute  provide  that, 
in  case  of  mortgaged  lands,  the  widow  shall  be  entitled  to  the  inter- 
est or  income  of  one-third  of  the  surplus;  that  the  widow  shall  be 
entitled  to  dower  in  aliened  lands;  that  when  the  estate  consists  of 
a  mill  or  other  tenement  which  cannot  be  divided  without  damage 
to  the  whole,  and  in  all  cases  where  the  estate  cannot  be  divided  by 
metes  and  bounds,  dower  may  be  assigned  of  the  rents,  issues,  and 
profits  thereof  to  be  had  and  received  by  the  widow  as  a  tenant  in 


III.  2.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.    455 

common  with  the  other  owners  of  the  estate.  These  are  the  only- 
prominent  provisions  made  by  the  statute  for  the  widow  in  case 
decedent  shall  leave  issue. 

The  naked  question  raised  is  whether,  under  these  statutory  pro- 
visions, a  widow  is  excluded  from  all  interest  in  the  minerals  in  lands 
which,  at  the  time  of  the  death  of  her  husband,  were  unimproved 
and  unproductive,  although  such  lands  may  be  rich  in  minerals,  and 
were  owned,  held,  and  known  as  mining  lands,  and  were  chiefly  and 
solely  valuable  for  the  minerals  contained  in  them. 

From  my  examination  I  have  been  unable  to  discover  that  this 
precise  question  has  ever  been  passed  upon  by  any  court  in  this 
country.  Text-writers  generally,  and,  in  some  of  the  following 
cases  none  of  which  involve  the  question  of  an  unopened  deposit, 
the  courts  lay  down  the  rule  that  a  widow  is  dowable  of  mines  which 
had  been  opened  at  the  death  of  the  husband,  but  that  she  may  not 
open  new  mines,  even  upon  the  land  set  apart  to  her  as  dower;  in 
other  words,  that  a  widow  is  not  dowable  of  mineral  deposits  where 
there  is  no  opened  mine.  Washb.  Real  Prop.  166;  4  Kent,  Com. 
41 ;  1  Bish.  Mar.  Worn.  §  264;  1  Scrib.  Dower  (2d  ed.)  200-206;  Freer 
v.  Stotenbur,  36  Barb.  641;  Hendrix  v.  McBeth,  61  Ind.  473;  Lenfers 
v.  Henke,  73  111.  405;  Gaines  v.  Mining  Co.,  $$  N.  J.  Eq.  603;  Coates 
v.  Cheever,  1  Cow.  460;  Reed  v.  Reed,  16  N  J.  Eq.  248;  Moore  v. 
Rollins,  45  Me.  493;  Billings  v.  Taylor,  10  Pick.  460;  Neel  v.  Neel, 
19  Penn.  St.  323;  Irwin  v.  Covode,  24  Id.  162;  Sayers  v.  Hoskinson, 
no  Id.  473  (1  Atl.  Rep.  308);  Findlay  v.  Smith,  6  Munf.  134;  Crouch 
v.  Puryear,  1  Rand.  (Va.)  258;  Clift  v.  Clift,  87  Tenn.  17  (9  S.  W. 
Rep.  198). 

Sayers  v.  Hoskinson  holds  that  it  is  the  right  of  a  life  tenant  to 
work  an  opened  mine  to  exhaustion.  Moore  v.  Rollins  is  to  the 
same  effect.     *     *     * 

In  Irwin  v.  Covode,  it  was  held  that  a  court  might  restrain  unskill- 
ful mining  and  wanton  injury  to  the  inheritance  by  a  tenant  for  life, 
but  not  such  mining  as  is  subject  to  no  other  objection  than  its  lia- 
bility to  exhaust  the  mine.     The  court  say  : 

"  It  is  said  that  on  the  western  slope  of  the  Alleghanies  the  seams 
of  bituminous  coal  are  so  few  and  thin  that  tenants  for  life,  if  per- 
mitted to  introduce  modern  facilities  for  mining,  would  exhaust  lands 
so  held,  and  leave  them  ruined  on  the  hands  of  those  in  succession. 
Should  this  happen,  it  would  be  no  more  than  occurs  in  every  life 
estate  in  chattels  which  perish  with  the  using.  So  long  as  the  estate 
is  used  according  to  its  nature,  it  is  no  valid  objection  that  the  use 
is  consumption."     *     *     * 

In  Neel  v.  Neel  the  wife  had  a  life  estate  under  a  will,  and  the  only 


456        USE   OF   LAND    BY    PARTICULAR   TENANT.      [PT.  III.  CH.  II. 

question  was  whether  a  tenant  for  life  of  land  having  coal  mines 
opened  upon  it  may  mine  the  coal,  not  only  for  his  own  use,  but  for 
sale.     The  court  say: 

"  It  seems  in  this  case  that  the  author  of  the  gift  had  sometimes 
sold  coal  out  of  these  pits,  but  I  do  not  conceive  this  to  be  material. 
It  is  sufficient  that  he  opened  them;  and  derived  any  profit  from 
them,  even  if  it  were  only  fire  bote.  The  fact  of  his  opening  the 
pits  made  the  coal  a  part  of  the  profits  of  the  land,  and  the  right  to 
them  will  pass  as  such  by  a  devise  of  a  life  estate.  If  he  meant  other- 
wise, he  should  have  said  so;  not  having  said  so,  this  is  the  legal 
inference  of  his  intention.  .  .  .  The  most  obvious  inference  would 
seem  to  be  that,  when  a  man  devises  land  with  an  open  mine  upon 
it  to  a  person  for  life,  he  intended  the  devisee  to  derive  profit  from 
the  mine  as  well  as  from  the  surface  of  the  land.  He  may  not  have 
supposed  that  the  devisee  would  exhaust  the  mine,  and  this  might 
seem  unreasonable;  but,  when  the  donor  did  not  see  proper  to 
restrain  the  gift,  how  shall  it  be  done?  Surely  courts  have  no  such 
control  over  the  arrangements  which  people  choose  to  make  of  their 
affairs.  Usually  an  enterprising  tenant  for  life  maybe  of  advantage 
to  the  remainderman,  but,  in  the  case  of  mines,  it  may  be  the  reverse. 
And  I  cannot  see  how  the  enterprise  of  the  citizen  is  to  be  restrained 
by  judicial  process.  If  we  could  get  ourselves  freer  from  the  notions 
derived  from  feudal  subordination,  we  would  perhaps  think  that  the 
privileges  of  tenants  for  life  should  be  enlarged,  rather  than 
restrained,  and  that  the  cultivation  of  the  country  would  be  thereby 
improved." 

In  Billings  v.  Taylor  the  husband  died  seized  of  a  tract  of  land  of 
four  acres  in  extent,  consisting  of  a  slate  quarry  mostly  below  the 
surface  of  the  ground.  One-quarter  of  an  acre  of  the  quarry  had 
been  dug  over,  and  the  practice  was  to  take  a  section  of  ten  or 
twelve  feet  square  on  the  surface,  and  go  down  to  a  certain  depth, 
and  then  begin  on  the  surface  again.     The  court  say: 

"  It  would  be  too  narrow  a  construction  to  say  that  no  part  of 
this  quarry  was  opened  except  that  portion  which  had  actually  been 
dug,  but  it  must  be  considered  that  the  whole,  lying  together  as  one 
tract,  belonging  to  one  estate,  and  wrought  in  the  manner  described, 
was  opened,  and  that  the  widow  was  entitled  to  dower  in  that  as  well 
as  the  other  estate  of  her  husband." 

In  Crouch  v.  Puryear  it  was  held  that  it  was  not  waste  in  a  tenant 
in  dower  of  coal  lands  to  take  coal  to  any  extent  from  a  mine 
already  opened,  or  t<>  sink  new  shafts  into  the  same  veins  of  coal. 

In  Gaines  v.  Mining  Co.,  held,  that  a  life  tenant  has  a  right  to  use 
a  mine  for  his  own  profit,  when  the  owner  of  the  fee  in  his  lifetime 


III.  2.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     457 

had  opened  it,  even  though  he  may  have  discontinued  work  upon  it 
for  a  long  period  of  years. 

In  Reed  v.  Reed,  held,  that  the  operating  of  an  opened  mine  was 
a  mode  of  enjoyment  of  the  land  to  which  a  tenant  for  life  was 
entitled. 

In  Findlay  v.  Smith,  held,  that  a  devisee  for  life  was  entitled  to 
the  unlimited  use  of  the  salt  mineral,  and  of  the  wood  upon  the 
premises  for  fuel,  used  in  the  production  of  salt  from  the  brine. 

It  has  been  held  that,  if  the  mode  of  using  the  land  consisted  in 
cutting  the  growth  upon  it  as  the  customary  source  of  profit,  the 
widow  may  continue  to  do  so.  Thus,  to  cut  and  sell  staves  and 
shingles  or  hoop-poles  under  the  circumstances  supposed  would  not 
be  waste.  Ballentine  v.Poyner,  2  Hayw.  (N.  C.)  no;  Clemence  v. 
Steere,  1  R.  I.  272. 

The  doctrine  that  a  widow  is  not  dowable  of  mining  lands,  unless 
at  the  time  of  the  death  of  her  husband  mines  had  been  opened,  is 
traceable  to  Stoughton  v.  Leigh,  1  Taunt.  402.  There  decedent  left 
a  large  estate,  upon  which  there  was  a  lead  and  a  coal  mine,  neither 
of  which  had  been  opened;  two  other  lead  and  two  coal  mines, 
which  he  had  leased  to  tenants,  reserving  certain  rents,  which  were 
to  be  paid  whether  the  tenants  did  or  did  not  open  the  mines,  one 
of  each  class  of  which  mines  had  been  opened  at  the  time  of  his 
death;  a  lead  and  a  coal  mine,  which  he  had  leased,  reserving  roy- 
alties payable  in  ore  and  coal,  and  which  coal  mine  had  been  opened 
at  the  time  of  his  death,  but  the  lead  mine  had  not.  Two  other 
lead  mines  and  two  other  coal  mines  had  been  opened.  Deceased 
was  also  entitled  to  minerals  lying  under  lands  not  his  own,  and  had 
operated  certain  mines  thereon,  and  others  were  unopened.  The 
court  held  that  the  wife  was  dowable  of  all  the  opened  mines,  but 
was  not  dowable  of  the  mines  or  strata  which  had  not  been  opened, 
whether  owned  by  lease  or  not.  The  decision  may  not  be  without 
reason,  but  certainly  no  reasons  are  given  in  the  opinion.  Clearly, 
as  to  those  lands  which  had  been  leased,  they  had  been  by  the 
decedent  devoted  to  mining  purposes,  and  the  mode  of  enjoyment 
and  source  of  profit,  under  all  the  authorities,  had  been  fixed  and 
determined  by  the  decedent;  and,  as  to  the  rents  which  were  to  be 
paid,  whether  the  mines  were  opened  or  not,  under  all  the  authorities 
on  the  subject  of  dower,  the  widow  was  entitled-  to  participate  in 
them. 

The  rule  laid  down  in  that  case  undoubtedly  had  its  origin  in  cases 
where  the  relation  of  landlord  and  tenant  existed.  A  tenant  who 
rents  a  farm  cannot  cut  and  sell  the  timber  therefrom,  convert  the 
farm  into  a  brick-yard,  open  a  stone  quarry  or  sand-pit,  bore  for  oil, 


45§         USE   OF   LAND   BY   PARTICULAR   TENANT.       [PT.  III.   CH.  II. 

or  mine  for  ore  thereon,  unless  authority  so  to  do  is  expressly  given 
or  arises  by  implication  from  the  situation;  but  one  who  rents  a 
piece  of  ground  upon  which  there  is  an  open  quarry  or  sand-pit  or 
brick-yard,  or  open  mine,  may  quarry,  take  out  sand,  make  brick, 
or  operate  the  mine,  unless  there  is  either  an  express  reservation, 
or  some  condition  or  circumstances  which  would  operate  as  an 
implied  restriction.  One  who  leases  a  copper  mine  may  mine  for 
copper,  but,  if  he  should  strike  a  pocket  of  silver,  the  same  rule 
would  prohibit  him  from  appropriating  the  silver.  The  Salt-well 
Case,  where  the  vein  of  petroleum  was  tapped,  is  an  illustration  of 
the  principle  underlying  this  class  of  cases.  Kier  v.  Peterson,  41 
Penn.  St.  361.  The  question  in  that  class  of  cases  is  one  of  inter- 
pretation of  the  contract,  —  of  what  was  the  use  granted,  —  and,  as 
bearing  upon  that  question,  the  condition  of  the  premises,  the  use 
to  which  the  premises  had  been  devoted,  and  the  source  of  profit 
are  important  considerations;  but  there  is  room  for  but  one  con- 
struction where  there  is  but  one  mode  of  enjoyment,  one  source  of 
revenue  or  profit,  one  use.  Suppose  that  a  lease  were  given  by  A 
of  all  his  mining  lands,  or  a  devise  were  made  for  life  of  a  gravel 
bank,  although  no  mine  or  pit  had  been  opened,  and  the  lands  were 
available  for  no  other  purpose,  or  were  adapted  to  no  other  use, 
from  which  any  considerable  revenue  could  be  derived,  and  suppose 
such  grant  were  made  to  a  wife  or  child,  could  it  be  contended  for 
a  moment  that  the  ordinary  methods  of  use  or  enjoyment  of  such 
lands  were  not  to  be  adopted ;  that  the  usual  mode  of  deriving 
revenue  from  such  lands  was  not  to  be  resorted  to;  that  such  land 
was  not  to  be  used   according  to  its  nature?  "     *     *     * 

In  Gaines  v.  Mining  Co.,  supra,  the  court  say: 

"  In  a  country  like  this,  where  there  are  such  vast  bodies  of  unim- 
proved lands,  which  would  otherwise  lie  dormant  in  the  hands  of  the 
life  tenant,  public  policy  requires  that  the  doctrine  of  waste  should 
be  liberalized,  and  the  decisions  have  uniformly  been  in  that  direc- 
tion. The  present  case  illustrates  the  hardship  of  a  close  rule  in  favor 
of  the  fee.  The  life  estate  vested  in  i860,  and  there  is  an  expectancy 
of  twenty  years  more  of  this  life.  A  construction  of  the  law  which 
locks  up  the  land  from  all  beneficial  use  for  so  long  a  period,  and 
gives  the  life  owner  only  the  privilege  of  paying  the  land  tax,  should 
not  be  favored.  When  the  property  is  unimproved  land,  not 
adaptable  to  any  other  beneficial  use  than  that  of  mining,  the  right 
of  the  life  tenant  to  use  it  reasonably  for  such  purpose  has  some  sup- 
port in  the  adjudications  in  this  country,  and  is  certainly  not  with- 
out reason  to  uphold  it 

In  Hickman  v.  Irvine^  ,5  Dana,  121,  the  court  say: 


III.  2]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.      459 

"  We  cannot  concede  that  a  widow  is  entitled  to  dower  in  the 
improved  land  only  of  her  deceased  husband.  She  is,  by  the  general 
provision  of  the  common  and  statute  law,  to  be  endowed  of  one 
equal  third  part  of  all  the  lands  of  which  he  was  seized  during  the 
coverture;  and,  to  whatever  extent  the  doctrine  of  forfeiture  for 
waste  may  apply  to  the  case  of  a  doweress  who  reduces  forest  lands 
to  a  state  of  cultivation,  we  cannot  view  this  doctrine,  and  the  pos- 
sibility that  its  application  may  render  a  portion  of  the  dower  lands 
useless  to  the  widow,  as  a  limitation  either  upon  the  quantity  or 
quality  of  the  land  to  be  assigned  as  a  dower.  When  a  case  shall 
occur  in  which  the  lands  assigned  for  dower  cannot  be  made  availa- 
ble for  the  reasonable  support  of  the  widow  without  converting  a 
portion  of  the  woodland  to  the  purposes  of  cultivation,  and  in  which, 
upon  an  attempt  being  made  thus  to  render  it  available,  the  rever- 
sioner shall  insist  upon  a  forfeiture,  it  must  be  decided  upon  con- 
sideration of  the  object  of  the  law  in  establishing  the  right  of  dower, 
upon  a  comparison  of  its  regard  for  the  present  comfortable  suste- 
nance of  the  widow  with  its  care  for  the  preservation  of  the  inheri- 
tance, and  upon  a  view  of  the  actual  condition  of  the  estate  and  of 
the  surrounding  country  with  regard  to  improvement  and  popula- 
tion, whether  the  change  of  timbered  into  arable  land  is  in  the 
particular  case  such  an  act  of  waste  as  would  be  just  cause  of 
forfeiture.' 

The  strict  rules  of  the  common  law  of  England  respecting  waste 
and  the  rights  of  tenants  for  life  do  not  obtain  here.  With  us  the 
change  in  the  mode  of  use  is  not  waste.  It  is  not  use,  but  abuse, 
that  is  waste.  Waste  must  be  consumption,  nor  is  consumption 
always  waste.  The  owner  of  a  life-estate  has  some  rights  in  com- 
mon with  the  owner  of  the  fee.  There  is  no  substantial  reason  why, 
so  far  as  the  use  of  premises  is  concerned,  there  should  not  be  a 
community  of  right  between  the  owner  of  the  life  estate  and  the 
owner  of  the  reversion. 

Our  statute  respecting  "  dower  "  defines  it  as  the  use  for  life  of 
one-third  of  all  the  lands  of  which  the  husband  was  seized  during 
the  marriage  relation.  "  Dower  "  is  defined  by  the  English  authori- 
ties as  the  provision  which  the  law  makes  for  a  widow  out  of  the 
lands  or  tenements  of  her  husband  for  her  support  and  the  nurture 
of  her  children.  Co.  Litt.  30b;  2  Bl.  Coram.  130.  The  rules  appli- 
cable to  a  country  where  landed  estates  are  large  and  diversified, 
where  the  laws  of  inheritance  are  exclusive,  where  the  theory  of 
dower  is  subsistence  merely,  and  where  there  is  a  strong  disposition 
to  free  estates  from  even  that  charge,  do  not  obtain  in  a  common- 
wealth like  ours,  where  estates  are  small,  and  the  policy  of  our  laws 


460        USE   OF   LAND   BY    PARTICULAR   TENANT.       [PT.  III.   CH.  II. 

is  to  distribute  them  with  each  generation,  where  dower  is  one  of 
the  positive  institutions  of  the  State,  founded  in  policy,  and  the 
provision  for  the  widow  is  a  part  of  the  law  of  distribution,  and  the 
aim  of  the  statute  is  not  subsistence  alone,  but  provision  commen- 
surate with  the  estate. 

In  the  present  case  the  grant  is  by  operation  of  the  statute  giving 
the  use  of  all  the  lands  of  which  the  husband  was  seized.  The  grant 
must  be  held  to  include  the  use  of  these  lands,  irrespective  of 
whether  mines  were  opened  upon  them  before  or  after  the  husband's 
death.  The  question  here  is  not  the  impairment  of  one  mode  of 
enjoyment  or  source  of  profit  to  reach  another.  There  is  but  one 
mode  of  enjoyment  of  the  land  in  question;  but  one  source  of 
revenue  or  profit.     The  land  is  susceptible  of  but  one  use. 

The  widow  is  therefore  entitled  to  one-third  of  the  amount  in  the 
hands  of  the  petitioner,  and  the  decree  of  the  court  below  is  affirmed. 


3.  Against  Whom  Waste  Lies  and  in  Whose  Favor.1 

BATES  v.  SHRAEDER. 

13  Johnson  (N.  Y.),  260.  —  1816. 

Action  of  waste.  The  declaration  stated,  that  Elizabeth  Graham 
was  seized  in  her  demesne,  as  of  fee,  in  certain  premises,  in  the 
town  of  Fishkill,  which  are  described  by  metes  and  bounds,  and  con- 
tained twenty-five  acres;  and  being  so  seized,  she  married  Duncan 
Graham,  and,  during  the  coverture,  they  had  a  son  born,  John  Gra- 
ham, by  which  marriage,  and  birth  of  son,  Duncan  Graham  became 
entitled  to  the  premises  as  tenant  by  the  curtesy,  the  reversion 
being  in  the  said  Elizabeth  and  her  heirs;  that  Elizabeth  Graham 
died,  whereby  her  son,  John  Graham,  became  entitled  to  the  rever- 
sion of  the  premises,  as  heir  to  his  mother;  that  John  Graham  died 
without  issue,  and  without  leaving  any  brother  or  sister,  or  any  legal 
representative  of  such  brother  or  sister,  and  that  the  plaintiff  became 
entitled  to  the  reversion  as  heir-at-law  of  John  Graham,  he,  the 
plaintiff,  being  the  oldest  son  of  John  Bates,  deceased,  who  was  the 
oldest  brother  of  Elizabeth  Graham,  and  the  oldest  uncle  of  John 
Graham;  that  Duncan  Graham,  during  the  continuance  of  his  estate 
as  tenant  by  the  curtesy,  in  the  year  1809,  assigned  his  estate  in  the 
premises  to  the  defendant,  who,  being  in  the  possession  thereof,  did 
wrongfully  and  unjustly  make  waste,  sale,  and  destruction,  in  the 
whole   of  said   premises,  by  destroying  and   changing  the  nature  of 

1  See  also  cases  on  pp.  391-400,  supra. — Ed. 


III.  3.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     46 1 

the  land,  etc.,  by  felling  timber,  etc.,  and  felling  divers  trees,  etc., 
to  the  disinhersion  of  the  plaintiff,  and  against  the  form  of  the 
statute  in  such  case  provided. 

To  this  declaration  there  was  a  general  demurrer,  and  joinder  in 
demurrer. 

Yates,  J.,  delivered  the  opinion  of  the  Court.  —  This  is  an  action 
of  waste,  brought  by  the  plaintiff  against  the  assignee  of  the  tenant 
by  the  curtesy.  The  declaration  states  that  the  plaintiff's  right  of 
inheritance  to  the  locus  in  quo  is  derived  from  John  Graham,  as  the 
person  last  seized.  It  also  states  the  previous  seisin  of  Elizabeth 
Graham,  his  mother,  who  died,  leaving  her  husband  tenant  by  the 
curtesy,  from  whom  the  defendant  holds  the  premises  by  assignment; 
that  John  Graham  derived  his  inheritance  from  the  mother;  and  that 
both  died  without  lawful  issue.  The  waste  is  specially  stated,  and 
it  then  concludes  that  the  plaintiff  is  injured,  and  has  sustained 
damages  to  the  value  of  two  thousand  dollars,  and,  therefore,  he 
brings  suit,  etc. 

To  this  declaration  there  is  a  general  demurrer  and  joinder;  and 
in  support  of  the  demurrer  it  is  insisted  that  John  Graham  was  not 
so  seized  as  to  form  a  new  stock  of  descent,  and  that  the  plaintiff  is 
not  heir-at-law;  and  if  he  be  such  heir,  that  waste  does  not  lie  by 
him  against  the  assignee  of  the  tenant  by  the  curtesy. 

From  the  facts  set  forth  in  the  declaration,  it  does  not  appear  that 
this  is  a  case  not  provided  for  in  our  statute  to  regulate  descents; 
and  the  common  law  governs  only  in  cases  not  provided  for  by  that 
act.  It  is  stated  that  the  inheritance  is  claimed  through  John  Gra- 
ham, the  son,  who  died  in  the  lifetime  of  his  father,  the  tenant  by 
the  curtesy.  There  can  be  no  doubt  that  this  tenancy  suspended 
the  descent,  so  that  the  inheritance  could  not  be  transmitted  during 
the  continuance  of  that  estate,  as  no  stock  of  descent,  during  its 
existence,  could  be  formed  by  John  Graham.  And  as  it  does  not 
appear,  by  the  declaration,  when  the  mother  died,  nor  whether  she 
left  any  other  brother  or  sister  besides  the  plaintiff  in  this  cause,  a 
sufficient  title  to  the  inheritance  is  not  shown  to  sustain  the  action. 

But  admitting  that  the  plaintiff  is  entitled  to  the  inheritance,  it  is 
clear  that  he  cannot  seek  redress  from  the  present  defendant.  1  Inst. 
54;  2  Inst.  301a.1  At  common  law,  the  assignee  of  the  tenant  by 
the  curtesy  cannot  be  sued  in  waste.  The  action  ought  to  have  been 
brought  against  the  tenant  himself  by  the  heir;  and  the  books  state 
that  thereby  he  shall  recover  the  lands  against  the  assignee,  for  the 
privity  which  is  between  the  heir  and  tenant  by  the  curtesy.     Walker's 

'But  see  Code  Civ.  Proc.  §  1651  for  present  New  York  rule.  —  Ed. 


462    USE  OF  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  CH.  II. 

Case,  3  Co.  23.  So,  if  tenant  in  dower,  or  tenant  by  the  curtesy, 
grant  over  their  estate,  yet  the  privity  of  action  remains  between 
the  heir  and  them,  and  he  shall  have  an  action  of  waste  against 
them  for  waste  committed  after  the  assignment;  but  if  the  heir  grant 
over  the  reversion,  then  the  privity  of  action  is  destroyed,  and  the 
grantee  cannot  have  any  action  of  waste  but  only  against  the  assignee ; 
for  between  them  is  privity  in  estate;  and  between  them  and  the 
tenant  in  dower,  or  the  tenant  by  the  curtesy,  is  no  privity  at  all;  so 
that,  at  law,  if  the  assignee  is  suable  in  waste,  there  must  be  a  privity 
of  estate;  unless,  then,  the  action  against  the  assignee  is  warranted 
by  the  statute,  it  is  improperly  brought  in  this  instance. 

The  section  in  the  act  §  36,  ch.  56,  1  R.  S.  750,  does  not 
authorize  this  action,  for,  according  to  the  decision  in  Livingston  v. 
Haywood,  it  gives  the  reversioner  or  remainderman  an  action  of 
waste  or  trespass  for  any  injury  done  to  the  inheritance,  notwith- 
standing an  intervening  estate  for  life  or  for  years;  it  gives  the 
action  of  waste  where  waste  is  the  appropriate  remedy,  and  trespass 
where  trespass  in  the  appropriate  remedy,  but  does  not  alter  the 
law  as  to  the  requisite  privity  of  estate  between  the  heir  and  the 
tenant  by  the  curtesy,  so  that  the  principle  continues  the  same  as  to 
the  assignee,  who,  without  such  privity,  is  not  liable  in  waste. 

The  sixth  and  seventh  sections  of  the  act  for  preventing  waste, 
contain  no  authority  for  this  action;  the  sixth  gives  the  right  of 
action  to  the  heir  at  any  time  during  or  after  his  minority,  and  the 
seventh  section  declares  tenants  for  life,  or  for  another's  life,  or  for 
term  of  years,  or  any  other  term,  liable  to  waste  after  granting  their 
estates,  if  they  take  the  profits.  Neither  of  those  sections  can  be 
so  construed  as  to  alter  the  law  on  the  subject,  so  as  to  give  the 
heir  an  action  of  waste  against  the  assignee  of  the  tenant  by  the 
curtesy.  It  would  seem  that  such  an  action  can  be  brought  in  no 
case,  except  where  the  heir  has  granted  over  the  reversion,  because, 
as  before  stated,  by  the  grant  the  privity  of  the  action  is  destroyed, 
and  the  grantee  cannot  have  any  action  of  waste  but  only  against 
the  assignee,  for  as  between  them  there  is  privity  in  estate,  but  no 
such  privity,  after  the  grant,  exists  between  the  assignee  and  the  ten- 
ant by  the  curtesy.  It  is,  therefore,  evident,  that  the  action  of  waste 
in  this  instance  cannot  be  maintained  by  the  heir  against  the 
assignee.  The  law  is  decidedly  against  it,  and  the  principles  in 
relation  to  tenants  by  the  curtesy  ought  to  be  strictly  applied,  in  an 
a<  tion  like  the  present,  because  the  judgment  operates  as  a  penalty, 
the  recovery  being  not  only  for  the  place  wasted,  but  treble  dam- 
The  defendant  is,  consequently,  entitled  to  judgment. 

Judgment  for  the  defendant. 


III.  3-]     SPECIAL  RESTRICTIONS  PROTECTING   INHERITANCE.    463 

PHILLIPS  v.  COVERT. 

7  Johnson  (N.  Y.),  1.  —  1810. 

Per  Curiam.  —  There  is  no  doubt  but  that  an  action  of  trespass 
will  lie  against  a  tenant  at  will  for  voluntary  waste,  as  in  the  cutting 
of  timber;  for  the  injury  amounts  to  a  determination  of  the  will  and 
of  his  possession.  Co.  Litt.  57a;  5  Co.  13a.;  Cro.  Eliz.  777,  784. 
The  defendants  in  this  case  were  nothing  more  than  tenants  at  will, 
for  the  purpose  of  this  action,  even  if  they  were  entitled  to  be  con- 
sidered as  holding  from  year  to  year,  for  the  purpose  of  a  notice  to 
quit;  and  they  would  have  no  right  to  such  notice,  after  they  had 
determined  the  will.  The  nonsuit  must  be  set  aside,  and  a  new  trial 
awarded,  with  costs  to  abide  the  event  of  the  suit. 

Rule  granted. 


LEIGHTON  v.  LEIGHTON. 

32  Maine,  399.  —  1851. 

Wells,  J.  — The  plaintiff  in  his  bill  alleges,  that  the  defendant, 
Leighton,  has  committed  strip  and  waste  upon  his  land,  described 
in  the  bill,  by  cutting  and  hauling  away  the  wood  and  timber  grow- 
ing on  it;  that  he  has  commenced  an  action  of  trespass  against  the 
defendant,  which  is  now  pending,  and  that  both  of  the  defendants 
have  expressed  their  determination  and  intention,  and  have  made 
preparations  to  commit  further  strip  and  waste  by  putting  on  teams 
and  taking  off  the  wood  and  timber. 

The  defendants  have  demurred  to  the  bill,  and  the  question  arises 
whether  it  can  be  maintained.  The  act  done  was  a  trespass,  and 
those  threatened  to  be  done  were  of  the  same  character. 

This  court  has  equity  jurisdiction  in  those  cases  only  in  which  it 
is  conferred  by  statute,  and  it  is  expressly  given  in  the  case  of  waste, 
when  there  is  not  a  plain  and  adequate  remedy  at  law.  Ch.  96,  §  10. 
But  the  remedy  given  by  an  action  of  waste  at  the  common  law  was 
confined  to  cases  where  there  was  a  privity  of  estate.  2  Black.  Com. 
281.  Our  statute,  chap.  129,  §  1,  gives  the  same  action,  to  the 
person  having  the  next  immediate  estate  of  inheritance,  against  ten- 
ants in  dower,  by  the  curtesy,  tenant  for  life  or  years,  in  which  he 
shall  recover  the  place  wasted,  and  the  amount  of  damages  done  to 
the  premises.  The  statute  thus  recognizes  the  privity  of  estate  as 
the  foundation  of  the  action,  and  defines  with  accuracy  its  limits. 
The  Legislature  then  gives  the  party  injured  a  further  remedy  in 
equity. 


464        USE   OF   LAND   BY    PARTICULAR   TENANT.      [PT.  III.  CH.  II. 

Formerly,  courts  having  general  equity  jurisdiction,  confined  the 
exercise  of  it  in  relation  to  waste,  to  such  as  was  technically  so 
called,  but  it  was  afterwards  extended  to  trespasses  where  the  mis- 
chief was  irreparable,  and  operated  as  a  permanent  injury  to  the 
estate.  Story's  Eq.  Jur.,  §  928;  Thomas  v.  Oakley,  18  Vesey,  184.  In 
Stevens  x.  Beekman,  1  Johns.  Ch.  317,  it  was  doubted  whether  this 
extension  of  the  ordinary  jurisdiction  of  the  court  would  be  produc- 
tive of  public  convenience,  and  in  Jerome  v.  Ross ,  7  Johns.  Ch.  345, 
while  the  jurisdiction  was  admitted  to  exist  in  that  court,  exercising 
full  chancery  powers,  it  was  stated  that  it  ought  to  be  restrained  to 
those  cases  where  the  property  itself  was  of  peculiar  value,  and 
could  not  well  admit  of  due  recompense,  and  would  be  destroyed  by 
repeated  acts  of  trespass.  It  is  thus  apparent,  that  courts  of  gen- 
eral chancery  jurisdiction  exercise  it  in  relation  to  a  certain  class 
of  trespasses,  and  the  question  arises  whether  it  has  been  given  to 
this  court.  The  same  question  has  arisen  upon  a  smilar  statute  in 
Massachusetts,  Attaquin  v.  Fish,  5  Mete.  140,  and  the  rule  laid 
down  there  as  having  been  acted  upon,  in  the  construction  of 
statutes  conferring  chancery  jurisdiction  upon  the  court,  is,  never  to 
take  cognizance  of  any  subjects  which  are  not  expressly  brought 
within  it  by  statute,  and  not  to  extend  jurisdiction  to  such  subjects 
by  implication,  and  certainly  not  when  the  implication  is  doubtful. 
And  it  was  decided  that  the  equitable  powers  given  concerning 
waste  extended  to  cases  of  technical  waste  only,  and  not  to  those 
trespasses  which  courts  that  have  full  chancery  powers  restrain  by 
injunction. 

Acting  upon  this  rule,  to  which  no  objection  is  apparent,  we  must 
confine  the  jurisdiction  to  cases  of  technical  waste.  We  cannot  find 
in  the  statute  any  clear  and  satisfactory  intention  to  confer  a  more 
enlarged  power.  Because  courts  of  equity  in  the  plenitude  of  their 
power  have  gone  beyond  legal  waste,  a  term  well  defined  and  under- 
stood in  the  law,  and  have  granted  relief  and  injunctions  in  cases  of 
trespasses  committed  and  threatened  to  be  committed,  this  court 
having  but  a  limited  jurisdiction,  cannot  feel  justified  in  pursuing 
the  same  course. 

Nor  does  there  appear  to  be  any  pressing  necessity  for  such  action. 
A  party  in  possession  of  his  property  has  the  legal  right  to  protect 
and  defend  it.  If  his  timber  is  cut  down,  he  may  take  or  replevy  it, 
or  recover  damages  in  an  action  of  trespass.  And  by  statute,  chap. 
169,  he  may  have  a  criminal  process  against  any  one  who  has 
threatened  to  commit  an  offense  against  his  person  or  property,  and 
if  there  is  just  cause  to  apprehend  and  fear  the  commission  of  such 
offense,  the  person  against  whom  the  complaint  is  made  may  be  put 


III.  3.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     465 

under  bonds,  with  sufficient  sureties  to  keep  the  peace.  And  when 
a  party  is  out  of  possession  of  real  estate,  and  has  commenced  an 
action  to  recover  it,  and  the  person  against  whom  the  action  is 
brought  shall  commit  any  act  of  waste,  or  shall  threaten  to  do  so, 
by  the  Act  of  July  10,  1846,  chap.  188,  the  court  in  which  such  action 
is  pending  may  issue  an  injunction  to  stay  such  waste. 

The  remedies  afforded  by  the  law  to  the  plaintiff  are  so  ample, 
that  there  is  less  regret  of  a  want  of  jurisdiction  by  which  his  bill 
could  be  sustained.  This  cannot  be  viewed  as  a  bill  for  discover}', 
for  it  is  not  averred  that  the  facts  rest  within  the  knowledge  of  the 
defendant  alone,  and  are  incapable  of  other  proof.  Woodman  v. 
Freeman,  25  Maine,  546. 

Bill  dismissed  with  costs.1 


Sawyer,  J.,  in  PARROTT  v.  BARNEY. 

2  Abbott  (U.  S.),  197.  —  1870. 

As  to  the  waste  upon  the  premises  demised  to  the  defendants,  I 
think  that,  upon  the  facts  found,  the  defendants  are  liable ;  although, 
as  will  hereafter  appear,  there  was,  in  my  judgment,  no  negligence 
on  their  part.  There  was,  doubtless,  fault  on  the  part  of  those  who 
delivered  the  explosive  substance  to  defendants  for  carriage  over 
their  express  route,  without  informing  them  of  the  dangerous 
character  of  the  article,  for  which  they  may  be  liable  to  defendant. 
The  rule  seems  to  be  established,  that  with  respect  to  liability  for 
waste,  the  tenant  is  in  a  position  analogous  to  that  of  a  common 
carrier,  and  without  some  special  agreement  to  the  contrary, 
responsible  for  all  waste,  however  or  by  whomsoever  committed, 
except  it  be  occasioned  by  act  of  God,  the  public  enemy,  or  the  act 
of  the  reversioner  himself.  4  Kent,  Com.  77;  Attersot  v.  Stevens,  1 
Taunt.  182;  Cook  v.  Champlain  Transportation  Co.,  1  Denio,  91;  2 
Eden,  Inj.,  198,  and  notes.  In  White  v.  Wagner,  4  Harr.  &  J.,  this 
doctrine  was  carried  out  in  an  extreme  case.  The  tenant  is  held 
responsible  to  the  landlord,  and  left  to  his  remedy  over  against  the 
delinquent  party.  The  liability  does  not  depend  on  mere  negligence, 
but  it  is  imposed  on  the  same  grounds  of  public  policy  as  those  upon 
which  the  strict  liabilities  of  common  carriers  are  made  to  rest.2 

1  See  Livingston  v.  Livingston,  6  Johns.  Ch.,  497.  — Ed. 

2  Defendants  composed  the  firm  of  Wells,  Fargo  &  Co.  They  received  upon 
the  premises  leased  by  them  of  plaintiff  a  case  of  nitro-glycerine  which  exploded 
and  caused  the  injury  in  question.  Defendants  did  not  know  the  contents  of 
the  package.  —  Ed. 

LAW  OF  PROP.   IN  LAND  —  30 


466    USE  OF  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  CH.  II. 

4.  The  Various  Remedies  For  Waste. 

a.    At  common-law. 

(1).  Writ  of  Prohibition  and  Attachment. 

(2).  Writ  of  Waste.1 

(3).  Trespass  on  the  Case  in  the  Nature  of  Waste.* 

b.  Under  modern  statutes.3 

c.  Inequity — injunction.* 

5.  Ownership  of  Timber,  Minerals,  etc.,  Removed  by  Tenant. 

MOOERS  v.  WAIT. 

3  Wendell  (N.  Y.),  104.  —  1S29. 

Trover  for  timber.  Plaintiff  demised  certain  premises  to  one  T- 
S.  Frazer,  for  four  years,  under  an  agreement  for  an  ultimate  sale 
to  Frazer.  During  the  term,  J.  S.  Frazer  sold  a  number  of  pine 
trees  to  J.  F.  Frazer,  who  paid  for  them,  removed  them  and  sold 
them  to  Griffin,  one  of  the  defendants  herein.  This  action  is 
brought  to  recover  their  value.  The  case  comes  up  on  a  motion  to 
set  aside  a  nonsuit. 

By  the  Court,  Savage,  Ch.  J.  —  It  has  been  decided  by  this  court, 
in  the  case  of  Suffem  v.  Toivnsend,  9  Johns.  R.  35,  that  an  agree- 
ment to  sell  land  does  not  imply  a  license  to  enter  and  cut  trees; 
and  also  that  a  license  to  enter,  would  not  authorize  the  cutting 
timber;  for  that  one  license  does  not  imply  the  other.  In  that 
case  there  was  a  parol  contract  of  sale  and  purchase,  under  which 
the  defendant  entered  and  cut  timber;  but  the  contract  was  not  con- 
summated, and  the  plaintiff  recovered  in  trespass  for  the  timber  cut 

1  These  writs,  (1)  and  (2),  were  granted  originally  against  tenants  in  dower 
and  by  the  curtesy  and  guardians  in  chancery  only.  Defendant  could  be  made 
to  pay  the  actual  damage  only.  The  statutes  of  Marlbridge  and  Gloucester 
extended  these  remedies  to  all  tenants  for  life  or  for  years.  The  statute  of 
Gloucester  made  the  penalty  for  waste  treble  damages  and  forfeiture.  These 
penalties  have  been  retained  with  certain  modifications  in  New  York.  See  Code 
Civ.  Pro.  §  1655.  The  writ  of  prohibition  and  attachment  has  now  been  super- 
seded by  the  equitable  remedy  —  injunction.  —  Ed. 

•See  cases,  supra. —  Ed, 

•  These  follow  as  to  the  penalties  with  more  or  less  modification  the  statutes 
of  Marlbridge  and  Gloucester,  but  are  usually  in  form  actions  on  the  casein  the 
nature  of  waste.  See  the  New  York  statute,  Code  Civ.  Pro.  §§  1651-1659,  and 
ases,  mpra.       Ed 

'See  cases,  mpra.  —  Ed. 


III.  5-]     SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     467 

while  the  defendant  was  in  possession.  The  same  point  was  again 
decided  in  Cooper  v.  Stower,  same  vol.  331.  In  that  case  there  was 
a  written  contract,  much  like  the  contract  in  this  case,  except  that 
there  was  no  lease  of  the  lot;  but  the  defendant  produced  a  con- 
tract, signed  by  Stower,  by  which  he  acknowledged  he  had  received 
a  contract  and  bond  for  the  consideration  money,  which  were  to  be 
executed  and  returned  to  the  plaintiff;  and  agreed  that  until  the 
papers  were  executed,  no  timber  should  be  cut  on  the  lot;  and  it 
was  shown  that  they  were  executed  and  returned  by  the  next  mail. 
The  defendant  contended  that  a  license  to  enter  was  implied.  The 
court  considered  the  acceptance  of  the  contract  of  Stower  a  license 
to  enter  and  occupy  as  tenants  at  will,  but  not  to  commit  waste; 
and  that  cutting  the  timber  beyond  what  was  necessary  for  the  use 
and  improvement  of  the  farm,  terminated  the  tenancy  at  will;  and 
of  course  the  defendants  were  trespassers.  It  was  there  considered 
that  the  withholding  the  deed  was  the  plaintiff's  security  upon  the 
land;  but  it  would  cease  to  be  a  security,  if  the  defendants  might 
lawfully  strip  the  land  of  its  timber,  and  render  it  of  no  value. 

The  contract  in  this  case  goes  farther,  and  gives  the  right  of 
occupancy  for  a  term  of  years,  on  performing  certain  condi- 
tions. It  is  undoubtedly  true  that  Frazer  had  a  right  to  enter 
and  enjoy  the  lot  which  he  had  contracted  to  purchase;  but, 
as  was  said  in  Cooper  v.  Stower,  "  the  contracts  in  the  case  must 
be  construed  reasonably  and  consistently  with  the  rights  of  both 
parties;  "  and  as  cutting  of  the  pine  timber  where  the  land 
was  not  suitable  for  cultivation,  was  not  the  proper  and  reason- 
able mode  of  enjoying  the  lot  for  agricultural  purposes,  Frazer  had 
no  right  to  cut  the  timber.  The  timber  constituted  the  principal 
value  of  the  land.  The  land  thus  valuable  was  the  plaintiff's  security 
for  the  purchase  money;  and  the  destruction  of  the  timber  was, 
therefore,  totally  unauthorized  by  the  contract.  Had  it  appeared 
that  the  lessee  could  not  enjoy  the  lot  to  the  best  advantage  for  the 
purposes  of  cultivation  and  improvement  as  a  farm  without  cutting 
the  timber  in  question,  a  different  case  would  have  been  presented; 
and  I  should  think  the  rights  of  the  parties  would  be  very  different; 
then  the  cutting,  and  perhaps  the  selling  would  have  been  justifiable. 
But  when  trees,  or  anything  else  attached  to  the  freehold,  are 
unlawfully  detached  therefrom,  the  property  thus  wrongfully 
separated  from  the  freehold,  becomes  the  personal  property  of  the 
owner  of  the  inheritance.  "Waste  is  a  tort,"  says  Lord  Hard- 
wicke,  3  Atk.  262,  "  and  punishable  as  such;  and  the  party  has  also 
a  remedy  for  the  trees  cut  down,  by  an  action  of  trover."  2  Cruise, 
268.     The  case  of  Fanant  v.  Thompson,   5  Barn.    &  Aid.  826,  is  full 


468    USE  OF  LAND  BY  PARTICULAR  TENANT.   [PT.  III.  CH.  II. 

to  the  same  point.  Certain  machinery  attached  to  a  mill  was  leased 
for  a  number  of  years.  The  tenant,  without  permission  of  his  land- 
lord, severed  the  machinery  from  the  mill,  and  in  that  situation  it 
was  sold  on  an  execution  against  the  tenant.  It  was  held  that  no 
title  passed  to  the  purchaser,  and  that  trover  lay  for  the  machinery. 
The  judges,  in  giving  their  opinions,  compare  the  machinery,  when 
attached  to  the  freehold,  to  the  case  of  trees  standing  which  are 
parcel  of  the  inheritance,  to  the  use  of  which  the  tenant  has  a  quali- 
fied right  during  his  term,  to  wit,  for  shade  and  fruit.  If,  however, 
they  are  separated  by  his  own  wrongful  act,  or  the  act  of  God,  the 
tenant  has  no  right  to  the  use  during  his  term,  but  they  become 
absolutely  vested  in  the  person  who  has  the  next  estate  of  inheri- 
tance; they  become  his  goods  and  chattels. 

These  cases  abundantly  show  what  is  consonant  to  good  sense 
and  sound  policy,  as  well  as  justice;  that  a  tenant  who  commits 
waste  by  cutting  timber,  acquires  no  title  to  the  timber  which  he 
thus  unlawfully  cuts,  and,  of  course,  can  convey  none;  and  further, 
that  a  bona  fide  purchaser  from  the  tenant  acquires  no  title,  but  is 
liable  in  trover  to  the  true  owner. 

The  facts  of  the  case  clearly  show  that  the  timber  was  unneces- 
sarily, and,  therefore,  unlawfully  cut  by  Frazer.  The  logs  in  ques- 
tion were  therefore  the  property  of  the  plaintiff.  The  nonsuit  must 
be  set  aside,  and  a  new  trial  granted;  costs  to  abide  the  event. 


LUSHINGTON  v.  BOLDERO. 

15  Beavan  (Eng.  Rolls  Court),  i.  —  1S51. 

Petition  for  the  payment  of  money  out  of  court.  Charles  Boldero 
and  Henry  Lushington  had  successive  estates  for  life  in  certain 
premises,  without  impeachment  for  waste.  They  became  bankrupts 
and  their  assignees  committed  equitable  waste  by  felling  ornamental 
timber.  They  were  compelled  to  pay  into  court  the  proceeds  of 
said  sales.      This  is  the  fund  now  in  controversy. 

The  Master  of  the  Rolls. — I  shall  first  consider  what  would 
have  been  the  effect  if  Charles  Boldero  had  himself  done  this  act. 
He  was  tenant  for  life  without  impeachment  of  waste,  and  having  cut 
ornamental  timber,  the  court  compelled  him  to  pay  into  court  the 
amount  for  which  the  timber  was  sold;  and,  omitting  all  questions 
respecting  intermediate  life  estates,  the  question  now  is,  whether  he 
or  the  reversioner  was  entitled  to  the  income  of  that  fund.  The 
equitable  doctrine  applicable  to  this  and  other  similar  cases  is  this, 


III.  5.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     469 

that  no  person  shall  obtain  any  advantage  by  his  own  wrong.  But 
it  is  manifest  that  the  tenant  for  life  may  obtain  very  considerable 
advantage  from  his  own  wrong,  if  he  were  to  cut  down  timber  and 
obtain  the  interest  of  the  fund;  his  income  for  life  would  be  thereby 
increased  beyond  what  it  would  have  been  if  the  timber  had  not 
been  cut. 

It  has  been  observed,  that  in  all  the  reported  cases  the  rule  has 
been  applied  to  the  corpus  of  the  fund;  but  that,  I  think,  ought  not 
to  vary  my  judgment,  because  it  depends  upon  this  equitable  and 
just  principle  that  no  man  shall  obtain  a  benefit  by  his  own  wrongful 
act;  the  authorities,  therefore,  which  lay  down  the  principle  in  cases 
of  corpus  only,  are  equally  applicable  to  any  species  of  interest  to  be 
derived  by  a  wrongful  act. 

It  is  then  said  that  this  is  a  case  in  which  the  court  does  not 
impose  a  forfeiture,  but  only  requires  restitution;  and  that  to 
deprive  the  tenant  for  life  of  the  income,  it  would  be  to  inflict  a 
penalty  upon  him,  inasmuch  as  he  would  have  had  the  enjoyment 
and  advantage  of  the  shade  and  most  of  the  timber  if  it  had  not 
been  cut.  But  this  he  deprives  himself  of  by  his  own  wrongful  act, 
and  for  this  reason  the  court  refuses  to  give  him  any  substitution  or 
remuneration.  It  is  also  material  to  bear  in  mind,  that  if  the  timber 
had  not  been  cut,  it  would  have  increased  in  value  for  the  benefit  of 
the  reversioner,  but  that  has  been  rendered  impossible  by  the  tenant 
for  life  having  improperly  cut  it.  If,  therefore,  it  is  impossible  for 
the  court  to  ascertain  what  portion  of  the  interest  ought  to  be 
attributed  to  the  estate  of  the  reversioner,  and  what  portion  to  the 
enjoyment  of  the  tenant  for  life,  it  is  the  tenant  for  life  who  has  him- 
self put  the  court  into  that  situation,  and  made  it  incapable  of  arriv- 
ing at  a  just  conclusion.  It  is  not  a  case  in  which  the  court  can  act 
on  the  principle  of  restitution.  The  case  put,  by  way  of  analog)', 
of  a  tenant  for  life  selling  out  the  fund  and  being  compelled  to 
restore  it,  is  inapplicable,  because  the  tenant  for  life  cannot  in  this 
case  restore  the  subject-matter. 

There  may  be  a  great  number  of  cases  in  which  the  timber  would 
become  of  great  value  when  the  reversion  fell  in;  and  it  is  impossi- 
ble for  the  court  to  ascertain  what  portion  of  it  would  have  been 
enjoyed  by  the  reversioner  if  the  wrongful  act  had  not  been  com- 
mitted. Undoubtedly  the  tenant  for  life  does  in  some  cases  directly 
gain  an  advantage,  but  it  is  not  by  reason  of  his  own  act.  Thus, 
where  by  the  act  of  God  a  large  quantity  of  timber  is  blown  down 
by  a  storm,  the  produce  is  laid  out  in  the  purchase  of  stock,  and  the 
interest  of  the  fund  is  paid  to  the  successive  tenants  for  life.  So, 
upon  the  same  principle,  when  timber  is  decaying,  and  it  cannot 


470         USE    OF   LAND    BY    PARTICULAR   TENANT.      [PT.  III.  CH.  II. 

benefit  the  reversioner  to  allow  it  to  remain  standing,  the  court, 
having  ascertained  that  it  is  for  the  benefit  of  all  parties,  orders  the 
timber  to  be  cut  down,  and  the  produce  to  be  invested,  and  the 
interest  of  the  fund  to  be  paid  to  the  tenants  for  life  in  succession. 

When,  however,  the  tenant  for  life  has  committed  the  wrongful 
act  which  produces  the  fund,  the  court  will  not  allow  him  to  gain 
any  benefit  from  it;  but  the  reversioner  takes  the  benefit  arising 
from  an  accretion  of  the  fund,  in  lieu  of  the  accretion  of  the  timber. 

Can  I  look  at  this  case  in  any  different  point  of  view,  because  the 
assignees,  and  not  the  tenant  for  life,  have  done  the  wrongful  act? 
The  assignees  stand  for  these  purposes  exactly  in  the  same  situation 
as  the  tenants  for  life;  they  are  bound  by  the  same  equities,  and  are 
exactly  in  the  same  position,  and  the  same  observations  apply  to 
both.  Nor  am  I  able  to  separate,  or  to  distinguish  the  case  of  Sir 
Henry  Lushington  from  that  of  Charles  Boldero;  because,  if  the 
two  tenants  for  life  had  concurred  together,  and  had  agreed  between 
themselves  that  the  one  in  possession  should  cut  the  timber,  and 
that  they  should  divide  the  produce  in  certain  proportions,  the  court 
would  have  prevented  either  of  them  from  gaining  any  benefit  from 
the  wrongful  act  which  they  concurred  in  performing.  Here,  they 
are  the  assignees  of  both;  and  I  am  unable  to  find  any  principle 
which  says  that  the  assignees  must  not  stand  exactly  in  the  same 
situation  as  the  tenant  for  life  would  stand,  and  be  bound  by  exactly 
the  same  equities.  If  Charles  Boldero  had  died  immediately  after- 
wards, and  Sir  Henry  Lushington  had  survived  for  a  very  long 
period,  and  the  income  of  the  proceeds  of  the  timber  had  been 
applied  during  that  period  in  payment  of  the  joint  creditors,  they 
would  have  obtained  a  great  benefit  from  the  wrongful  act  of  the 
assignees.  I  must  hold  them  in  exactly  the  same  position  as  if  the 
wrongful  act  had  been  committed  by  Sir  Henry  Lushington  alone. 
I  cannot  separate  the  character  of  the  assignees;  they  are  assignees 
for  the  joint  creditors  and  of  the  joint  estate;  and  I  consider  that  I 
must  treat  the  case  exactly  in  the  same  way  as  if  the  two  tenants  for 
life,  one  only  being  in  possession,  had  concurred  in  the  wrongful  act 
of  cutting  the  timber. 

It  was  suggested  that  I  should  suppose  the  possible  case  of  the 
commission  having  been  superseded;  and  I  was  asked,  whether  the 
tenant  for  life,  Sir  Henry  Lushington,  who  is  perfectly  innocent  in 
the  matter,  ought  to  be  prejudiced  by  the  wrongful  act  committed 
by  his  assignees.  It  would  be  hard  if  it  were  to  be  so;  but  I  do  not 
«  onsider  that  question  at  present,  because  it  does  not  arise  before 
me.  But,  if  the  question  did  arise,  it  is  manifest  that  the  remark 
would  apply  just  as  much  to  the  case  of  Mr.  Charles  Boldero's  estate 


III.  5.]      SPECIAL  RESTRICTIONS  PROTECTING  INHERITANCE.     471 

as  to  that  of  Sir  Henry  Lushington;  nor  can  I  find  anything  what- 
ever in  the  fiduciary  character  of  the  assignees,  who,  in  matters  of 
this  description,  stand  in  exactly  the  same  position  as  the  tenants 
for  life,  to  prevent  their  being  held  liable  precisely  in  the  same  man- 
ner as  the  tenants  for  life  themselves.  They  have  themselves  done 
this  wrongful  act  and  neither  they  nor  the  persons  for  whom  they 
are  trustees  can  gain  any  advantage  by  reason  of  it. 

I  am  of  the  opinion,  therefore,  that  upon   the   petition,  I   must 
make  an  order  according  to  the  prayer.1 

1  See  Gent  v.  Harrison,  Johnson  (Eng.  Ch.),  517 — Ed. 


CHAPTER  III. 

Use  of  Another's  Land. 
I.  Under  easements. 

THE  GREENWOOD  LAKE  AND  PORT  JERVIS  RAILROAD 
COMPANY  v.  THE  NEW  YORK  AND  GREENWOOD  LAKE 
RAILROAD  COMPANY. 

134  New  York,  435.  —  1892. 

Vann,  J.  —  The  only  evidence  tending  to  show  that  either  Myers 
or  Thorp  was  a  "  trustee  "  was  the  addition  of  that  word  to  their 
names,  respectively,  in  designating  them  as  the  respective  grantees 
in  the  conveyances  of  March  17  and  December  22,  1877.  As  there 
was  no  declaration  of  trust  and  no  deed  to  either,  s<  as  trustees,"  the 
addition  to  the  name  of  the  party  of  the  second  part,  in  the  absence 
of  other  evidence,  might  be  regarded  as  merely  descriptio  personce. 
Towar  v.  Hale,  46  Barb.  34;  People  v.  Board  of  Stock  Brokers,  49 
Hun,  349;  affirmed  112  N.  Y.  670.  But  if  either  was  a  trustee,  the 
conveyance  to  him  "  and  to  his  successors  and  assigns  forever,"  was 
absolute,  with  no  limitation  upon  his  power  to  convey  and  no  dis- 
closure of  the  nature  or  object  of  the  trust.  While  he  might  be 
required  to  account  for  the  proceeds  in  a  proper  proceeding  and 
upon  adequate  proof,  his  grantees  took  a  good  title,  which  neither 
party  to  this  action  can  question,  as  both  claim  under  it.  Mr.  Trap- 
hagan,  therefore,  took  the  entire  estate  and  during  his  ownership  he 
granted  a  certain  right  in  the  land  under  consideration  to  the  Green- 
wood Lake  Ice  Company.  The  nature  of  that  right  is  the  main 
question  to  be  determined  upon  this  appeal.  The  instrument  by 
which  the  right  was  created  was  under  the  hand  and  seal  of  Mr. 
Traphagen  and,  after  reciting  his  ownership  of  the  strip  of  land  in 
question,  it  proceeded  as  follows:  "  And  whereas  the  Greenwood 
Lake  Ice  Company  desire  to  use  said  property  as  a  way  of  ingress, 
egress  and  regress  for  themselves,  their  agents,  servants  and  laborers 
over  and  upon  which  they  may  pass  and  repass  railroad  cars  contain- 
ing ice  and  materials  for  use  in  said  ice  business;  now,  therefore,  in 
consideration  of  one  dollar  to  me  in  hand  paid,  I  do  hereby  grant  to 
the  said   ii  e  company  and  to  their  assigns  and  successors  in  said  ice 

U72J 


I.]  UNDER   EASEMENTS.  473 

business,  the  right  to  use  said  property  for  the  purpose  of  a  way  of 
ingress,  egress  and  regress  over  and  upon  which  they  may  pass  and 
repass  railroad  cars  containing  ice  and  materials,  said  supplies  for 
use  in  said  ice  business,  together  with  themselves,  their  employes 
and  servants,  but  it  is  expressly  understood  that  this  license  to  use 
said  railroad  is  not  an  exclusive  right  to  the  said  company.  And  it 
is  further  agreed  that  the  right  hereby  conveyed  is  not  to  be  assigned 
by  the  said  company  except  to  the  successors  in  and  assigns  of  said 
ice  business  and  only  for  the  purpose  of  said  business." 

It  is  contended  by  the  plaintiff1  that  this  was  a  license,  revocable 
at  the  will  of  the  grantor,  or  his  assigns,  and  by  the  defendant,  that 
it  was  an  easement,  irrevocable  without  the  consent  of  both  parties 
or  their  successors  and  that  it  ran  with  the  adjoining  land  of  the 
grantee,  upon  which  its  ice  business  was  conducted,  and  for  the 
benefit  of  which  the  grant  was  made.  While  the  instrument  creating 
the  right  is  termed  in  the  body  thereof,  a  "  license  to  use  said  rail- 
road," this  is  not  conclusive,  for  the  court  must  look  at  the  nature 
of  the  right,  rather  than  to  the  name  that  the  parties  gave  it,  in 
order  to  learn  its  true  character. 

An  easement  is  a  right  without  profit,  created  by  grant  or  pre- 
scription, which  the  owner  of  one  estate  may  exercise  in  or  over  the 
estate  of  another  for  the  benefit  of  the  former.  Washburn,  Ease.  2; 
Goddard,  Ease.  2;  3  Kent's  Com.  452;  Nellis  v.Munson,  108  N.  Y. 
453;  Pierce  v.  Keator,  70  Id.  419,  421;  Hills  v.  Miller,  3  Paige,  254, 
257;  Ritger  v.  Parker,  8  Cush.  147;  Morrison  v.  Marquardtt  24  Iowa, 
35;  Big  Mountain  Imp.  Co.'s  Appeal,  54  Penn.  St.  361;  Hezulins  v. 
S/iippam,  5   Barn.   &  C.   221;  Rowbotham  v.  Wilson,  8  Ellis  &  B.  123. 

A  license  is  a  personal,  revocable  and  non-assignable  privilege, 
conferred  either  by  writing  or  parol,  to  do  one  or  more  acts  upon 
land  without  possessing  any  interest  therein.  Wiseman  v.  Luck- 
singer,  84  N.  Y.  31;  Mendcnhall  v.  Klinck,  51  Id.  246;  Pierrepont  v. 
Barnard,  6  Id.  279,  286;  Jackson  v.  Babcoek,  4  Johns.  418;  Mum- 
fords.  Whitney,  15  Wend.  380;  Cook  v.  Stearns,  11  Mass.  533;  Prince 
v.  Case,  10  Conn.  375 ;  Washburn,  Ease.  6,  7;  Goddard,  Ease.  3;  13 
Am.  &  Eng.  Encyc.  539. 

Although  originally  revocable  at  the  will  of  the  licensor,  it  may 
become  irrevocable  through  the  expenditure  of  money  by  the 
licensee.2  Wiseman  v.  Lucksingcr,  84  N.  Y.  31,  41 ;  Dempsey  v.  Kipp, 
61    Id.    462;  Pierrepont  v.  Barnard,   6   Id.  279;   Risien  v.  Brown,  10 

1  Plaintiff  owns  the  land  in  question  subject  to  such  rights  as  the  Ice  Co. 
had.  Defendant  is  practically  an  employee  of  the  successor  of  the  Ice  Com- 
pany —  Ed. 

2  But  see  cases  under  "  Licenses  "  Part  IV.  —  Ed. 


474  USE  OF  another's  land.        [PT.  III.  CH.  III. 

S.  W.  Rep.  661;  Rogers  v.  Cox,  96  Ind.  157;  Russell  v.  Hubbard, 
59  111.  335;  Morse  v.  Copeland,  2  Gray,  302;  Drake  v.  Wells,  11 
Allen,  141. 

The  right  in  question  was  created  by  deed,  and  is  made  assignable, 
because  it  runs  to  the  "  Ice  Company  and  to  their  assigns  and  suc- 
cessors," with  a  limitation  upon  the  power  of  assignment,  restricting 
it  "  to  the  successors  in  and  assigns  of  said  ice  business."  It  was 
without  profit,  as  nothing  was  to  be  taken  from  the  land  of  the 
grantor.  It  was  not  personal,  because  succession  in  title  was  pro- 
vided for.  Its  nature  indicates  that  the  parties  intended  it  to  be  a 
permanent  interest  in  the  land  of  the  grantor,  for  it  was  a  right  of 
way  over  a  railroad  for  the  purpose  of  enabling  a  corporation  to 
carry  on  a  business  requiring  transportation  upon  an  extensive  scale. 
The  business  was  of  such  a  character  that  a  revocable  right  might 
result  in  irreparable  injury  to  the  grantee.  The  express  mention  of 
successors  and  assigns  of  the  business  shows  that  the  parties  had  in 
contemplation  something  more  than  a  temporary  expedient,  or  a 
merely  revocable  user.  Moreover,  the  right  of  way  was  the  only 
means  of  communication  by  land  with  the  railroad  upon  which  the 
ice  company  depended  for  the  transportation  of  its  ice  to  market, 
and  of  supplies  to  its  ice  house.  The  track  was  laid  upon  the  strip  of 
land  leading  to  the  railroad,  the  right  to  use  it  granted  and  the  ice 
house  built,  all  at  about  the  same  time,  and  apparently  for  the  same 
purpose,  as  there  was  no  other  use  for  the  track.  While  it  is  true 
that  no  dominant  estate  is  expressly  named  in  the  grant,  yet  one  in 
fact  existed  and  was  named  by  implication.  The  grant  was  to  an 
ice  company,  for  use  in  its  ice  business,  of  the  right  to  use  a  railroad 
track  for  the  purpose  of  ingress  and  egress.  Ingress  to  what  and 
egress  from  what?  Obviously,  the  adjoining  land  on  which  the  ice 
company  had  constructed  an  ice  house,  and  was  conducting  its  ice 
business  at  the  date  of  the  grant,  and  to  which  it  acquired  title  only 
three  days  after  the  original  conveyance  of  the  strip  of  land  in  ques- 
tion. All  of  the  deeds  were  on  record,  and  the  creator  of  the  right 
under  consideration  expressly  mentions  the  ice  business  five  times 
in  the  instrument  creating  it,  thus  showing  that  he  knew  of  its  exist- 
ence, and  contracted  with  reference  to  it  as  it  was  then  conducted. 
The  sole  object  of  the  grant  was  to  benefit  the  ice  business  by  giving 
it  a  right  of  way  from  its  ice  house  to  the  radroad,  and  by  necessary 
implication  from  the  language  used,  under  the  circumstances  sur- 
rounding the  grantor  when  he  used  it,  the  term  "  ice  business  "  was 
intended  t<»  designate  the  land  where  that  business  was  carried  on, 
as  the  land  to  be  benefited  by  the  grant.  That  land,  therefore,  was 
in  d  to  be,  and  ib  indirectiy  referred  to  as,  the  dominant  estate, 


II.]  PROFITS   A    PRENDRE.  475 

or  that  to  which  the  right  beiongs,  while  the  servient  estate,  or  that 
upon  which  the  burden  rests,  is  directly  mentioned. 

We  think  that  the  grant  from  Mr.  Traphagen  to  the  ice  company, 
when  construed  with  reference  to  what  the  parties  had  in  contem- 
plation, satisfies  every  element  in  the  definition  of  an  easement,  and 
conflicts  with  nearly  every  element  in  the  definition  of  a  license. 

After  examining  all  of  the  exceptions  to  which  our  attention  has 
been  called,  we  find  nothing  that  should  reverse  the  judgment,  which 
should,  therefore,  be  affirmed,  with  costs. 

Judgment  affirmed. 


II.  Profits  &  prendre. 

VAN  RENSSELAER  v.  RADCLIFF. 
10  Wendell  (N.  Y.),  639.  —  1833. 

Trespass  for  entering  upon  certain  land  and  carrying  away 
timber. 

By  the  Court,  Savage,  Ch.  J.  —  Common  or  a  right  of  common, 
is  a  right  or  privilege  which  several  persons  have  to  produce  of  the 
lands  or  waters  of  another.  Thus,  common  of  pasture  is  a  right  of 
feeding  the  beasts  of  one  person  on  the  lands  of  another;  common 
of  estovers  is  the  right  a  tenant  has  of  taking  necessary  wood  and 
timber  from  the  woods  of  the  lord  for  fuel,  fencing,  etc. ;  common  of 
turbary  and  piscary  are  in  like  manner  rights  which  tenants  have  to 
cut  turf  or  take  fish  in  the  grounds  or  waters  of  the  lord.  All  these 
rights  of  common  were  originally  intended  for  the  benefit  of  agri- 
culture, and  for  the  support  of  the  families  and  cattle  of  the  cultiva- 
tors of  the  soil.  They  are  in  general  either  appendant  or  appurtenant 
to  houses  and  lands.  There  is  much  learning  in  the  books  relative 
to  the  creation,  apportionment,  suspension,  and  extinguishment  of 
these  rights,  which  fortunately  in  this  country  we  have  but  little 
occasion  to  explain;  but  few  manors  exist  among  us  as  remnants  of 
aristocracy  not  yet  entirely  eradicated.  These  common  rights  which 
were  at  one  time  thought  to  be  essential  to  the  prosperity  of  agri- 
culture, subsequent  experience,  even  in  England,  has  shown  to  be 
prejudicial.  In  this  country  such  rights  are  uncongenial  with  the 
genius  of  our  government,  and  with  the  spirit  of  independence 
which  animates  our  cultivators  of  the  soil.  In  our  State,  however, 
we  have  the  manors  of  Livingston  and  of  Rensselaerwyck,  in  which 
these  rights  have  existed,  and  to  some  extent  do  still  exist,  and  we 
are  obliged,  therefore,  to  look  into  the  d.octrine  of  commons  to 
ascertain  the  rights  of  parties  and  do  justice  between  them. 


476  USE  OF  another's  land.       [PT.  III.  CH.  III. 

Common  of  pasture  is  the  principal  of  these  rights,  and,  therefore, 
most  of  the  cases  found  in  the  books  relate  to  that  species  of  com- 
mon. This  was  appendant,  appurtenant,  in  gross,  or  because  of 
vicinage;  of  the  last  I  shall  take  no  notice,  because  it  is  not  appli- 
cable to  estovers.  Common  appendant  is  a  right  annexed  to  the 
possession  of  arable  land,  by  which  the  owner  is  entitled  to  feed  his 
beasts  on  the  lands  of  another,  usually  of  the  owner  of  the  manor  of 
which  the  lands  entitled  to  common  are  a  part.  This  kind  of  com- 
mon must  have  existed  from  time  immemorial,  and  can  be  claimed 
by  prescription  only,  and  is  confined  to  such,  and  so  many  cattle  as 
are  necessary  to  plough  and  manure  the  land  which  is  entitled  to 
common,  and  which  are  levant  and  couchant,  that  is,  so  many  as  the 
land  will  sustain  during  the  winter.  Common  appurtenant  does  not 
necessarily  arise  from  any  connection  of  tenure,  but  must  be  claimed 
by  grant  or  prescription.  It  may  be  created  by  grant  and  may  be 
annexed  to  any  kind  of  land,  whether  arable  or  not.  Common  in 
gross  has  no  relation  to  the  tenure  of  land,  but  is  annexed  by  deed 
or  prescription  to  a  man's  person. 

Common  of  estovers  must,  I  apprehend,  be  either  appendant  or 
appurtenant;  they  are  necessarily  incident  either  to  houses  or  lands. 
This  right  of  common  may  exist  by  prescription  and  is  then  append- 
ant, or  be  especially  granted,  and  then  it  becomes  appurtenant. 
3  Cruise  Dig.  83  to  90;  3  Black.  Com.  33,  34.  Whether  this  kind  of 
common  is  apportionable  is  the  principal  question  in  this  case.  It 
seems  to  have  been  doubted  heretofore  whether  common  of  pasture 
was  apportionable,  and  we  find  the  subject  elucidated  by  Chief 
justice  Willes  in  Bennet  v.  Reave,  Willes  227,  as  late  as  the  year  1740. 
He  says  common  of  pasture  appendant  may  be  apportioned;  for  as 
the  land  is  entitled  to  common  only  for  such  cattle  as  are  necessary 
to  plough  or  manure  the  land,  the  common  cannot  be  surcharged  by 
any  number  of  divisions  or  subdivisions  in  consequence  of  alienation. 
It  had  been  contended  in  that  case,  that  the  owner  of  every  parcel, 
even  a  yard,  was  entitled  to  common  for  beasts  of  the  plough  as  well 
as  other  cattle,  on  the  assumed  ground  that  the  tenant  was  bound  to 
plough  the  lord's  land,  and,  therefore,  must  have  a  team,  and,  of 
coarse,  must  have  them  pastured;  but  it  was  clearly  shown  that  the 
team  entitled  to  pasture  was  such  as  was  necessary  for  ploughing 
land  entitled  to  common,  and  it  made  no  difference  into  how 
many  hands  it  went;  no  more  team  was  necessary  for  ploughing, 
and  no  more  cattle  necessary  for  manuring.  Such  common  is 
apportionable,  and  the  common  being  incident  to  the  land,  passed 
with  it  in  such  proportions  as  the  land  should  be  divided  into;  the 
ncc  of   half,  for  instance,  of  the  land,  was  entitled  to  half  the 


II.]  PROFITS    A    PRENDRE.  477 

right  of  common.  This  case  was  of  common  appendant,  and  of  this 
kind  of  common,  of  pasture,  it  is  said,  it  is  apportionable  either 
when  part  is  purchased  by  the  lord  or  any  other  person.  Common 
appurtenant  of  pasture  is  also  apportionable  by  alienation  of  part 
of  the  land,  but  not  if  the  person  entitled  to  it  purchases  part  of  the 
land  out  of  which  the  common  is  to  be  had,  3  Cruise,  92,  3;  Co. 
Litt.  122a. ;  and  the  reason  assigned  is  because  common  appurtenant 
is  against  common  right,  whereas  common  appendant  is  of  common 
right.     4  Co.  36;  8  Co.  78. 

The  authorities  also  inform  us  that  common  of  estovers  cannot  be 
apportioned.  Lord  Coke  says,  "  If  a  man  have  reasonable  estovers, 
as  housebote,  etc.,  appendant  to  his  freehold,  they  are  so  entire 
that  they  shall  not  be  divided  between  coparceners."  Co.  Litt. 
164b;  3  Cruise,  93.  Lord  Mountjoy's  case  is  there  stated,  which 
was  that  of  common  turbary;  and  it  was  resolved  that  he  could  not 
assign  his  interest  to  one  or  more,  for  that  might  work  a  prejudice 
and  surcharge  to  the  tenant  of  the  land,  and,  therefore,  if  such  an 
inheritance  descended  to  parceners,  it  cannot  be  divided.  In  Lnt- 
treV s  case,  4  Co.  87,  Lord  Coke  says,  "  So  if  a  man  has  estovers  by 
grant  or  prescription  to  his  house,  although  he  alters  the  rooms  and 
chambers  of  this  house,  as  to  make  a  parlor  where  it  was  the  hall,  or 
the  hall  where  the  parlor  was,  and  the  like  alterations  of  the  qualities 
and  not  of  the  house  itself,  and  without  making  new  chimneys,  by 
which  no  prejudice  accrues  to  the  owner  of  the  wood,  it  is  not  any 
destruction  of  the  prescription,  for  then  many  prescriptions  would 
be  destroyed;  and  although  he  builds  a  new  chimney  or  makes  a 
new  addition  to  his  old  house,  by  that  he  shall  not  lose  his  prescrip- 
tions, but  he  cannot  employ  or  spend  any  of  his  estovers  in  the  new 
chimneys,  or  in  the  part  newly  added."  3  Cruise,  89.  Estovers 
appurtenant  to  an  house  cannot  be  separated  from  the  house,  but 
must  be  spent  on  the  house.  3  Cruise,  89;  Plowd.  382.  These 
authorities  seem  to  be  express  that  common  of  estovers  cannot  be 
apportioned,  and  for  the  reason  that  thereby  the  land  out  of  which 
the  estovers  are  to  be  taken  would  be  surcharged.  If,  for  instance, 
estovers  are  granted  as  belonging  to  a  farm  of  200  acres,  so  long  as 
this  is  one  farm,  there  is  but  one  house  and  probably  not  more  than 
two  chimneys;  but  if  this  farm  is  divided  into  two,  another  house 
becomes  necessary  and  double  the  number  of  chimneys  must  be 
supplied.  This  would  be  an  injury  to  the  lord.  So  also  of  fences 
and  buildings;  by  dividing  the  farm  into  two,  more  fences  and 
buildings  become  necessary,  and  if  both  are  to  be  supplied  from  the 
woods  of  the  lord,  an  increased  quantity  would  be  taken,  where,  by 
the  grant  itself,  only  estovers  for  one  farm  were  allowed.     As  these 


478  USE  OF  another's  land.        [PT.  III.  CH.  III. 

estovers  cannot  be  apportioned,  neither  of  the  tenants  among  whom 
the  farm  is  divided  can  have  them,  and,  therefore,  they  become 
extinguished.  Common  of  estovers  must  be  considered  as  an  entire 
thing,  not  to  be  divided;  and  in  case  of  a  common  person,  if  an 
entire  thing  be  divided  or  extinguished  in  part  by  the  act  of  the 
party,  it  is  an  extinguishment  of  the  whole;  but  otherwise  where  it 
is  by  the  act  of  God  or  the  law.  n  Vin.  567,  pi.  4,  tit.  Extinguish- 
ment, P.  6  Co.  1;  Bruerton's  Case,  4  Co.  37;  Turringham's  Case. 

Lord  Coke  also  says,  "  If  a  man  have  reasonable  estovers,  as  house- 
bote, heybote,  etc.,  appendant  to  his  freehold,  they  are  so  entire  as 
they  shall  not  be  divided  between  coparceners."  Co.  Litt.  164b. 
In  answer  to  the  question,  what  shall  become  of  such  inheritances? 
he  says  it  appears  by  the  books  that  the  eldest  shall  have  them, 
and  the  others  a  contribution;  but  if  no  other  property  descended 
from  which  contribution  could  be  had,  then  the  parceners  should 
have  alternate  enjoyment,  or,  in  case  of  piscary,  one  shall  have  the 
first  fish  and  another  the  second;  and  so  of  a  toll-dish,  where  the 
hereditament  was  the  toll  of  a  mill.  If,  however,  that  doctrine  were 
applicable  here,  it  would  only  relate  to  descents,  not  alienation  by 
deed;  and  even  as  to  descents,  it  has  been  held  that  one  of  several 
heirs  to  whom  a  right  of  estovers  descended,  could  not  alien  his  share 
so  as  to  authorize  the  assignee  to  enter  and  cut  wood.  Leytnan  v. 
Abed,  16  Johns.  R.  30.  This  case  of  Ley/nan  v.  Abeel  recognizes  the 
doctrine  which  I  have  advanced,  that  estovers  are  not  apportionable. 
There  one  of  the  proprietors  of  the  Catskill  patent  devised  certain 
lands  to  his  two  sons,  and  gave  each  an  undivided  moiety  of  his 
right  in  the  undivided  lands;  he  also  devised  portions  of  lands  to 
each  of  his  three  daughters  and  to  a  granddaughter.  He  then  gave 
to  each  of  his  children  liberty  of  cutting  wood  and  taking  stone  from 
any  of  his  undivided  lands  in  common  forever.  The  land  subject  to 
common  became  the  property  of  the  plaintiff.  One  of  the  five  chil- 
dren of  the  proprietor,  Nelly  Abeel,  died  in  1809,  leaving  four  chil- 
dren, one  of  whom  conveyed  his  right  to  cut  wood  and  carry  away 
stone  to  the  defendant,  who  did  cut  and  carry  away  five  loads  of 
wood,  for  which  the  suit  was  brought.  It  was  held  that  the  right  of 
Nelly  Abeel  descended  to  all  her  children,  but  that  the  right  to  cut 
wood,  although  descendible  and  alienable,  could  not  be  enlarged  so 
as  to  defeat  the  intention  of  the  devisor,  by  imparting  the  entire 
right  to  be  enjoyed  by  each;  that  one  could  not  alone  convey  any 
right  —  of  course  one  alone  had  no  right  to  cut  wood ;  but  from  this 
it  would  follow,  that  as  the  right  was  an  entirety  and  had 
devolved  by  operation  of  law  upon  four,  although  they  could  not 
enjoy   h    severally,  they  might   jointlv  convey  it  to  one  who  might 


II.]  PROFITS   A    PRENDRE.  479 

enjoy  it  in  severalty  as  an  entirety.  It  follows  also  from  the  doc- 
trine of  this  case  that  the  owner  of  such  a  right  cannot  divide  it, 
i.  c,  by  the  act  of  the  party;  if  he  conveys  part  of  the  lands  entitled 
to  common,  granting  the  right,  it  cannot  be  enjoyed.  The  common 
belongs  to  the  whole  farm  as  an  entirety,  not  to  parts  of  it.  This 
would  enlarge  the  right  to  the  prejudice  of  the  land  out  of  which  the 
common  was  to  be  taken.  As  no  one  portion  of  the  land  entitled  to 
the  common  could  enjoy  it,  it  is  necessarily  extinguished;  and  being 
extinguished,  it  can  be  revived  only  by  a  new  grant.  It  is  con- 
tended by  the  counsel  for  the  defendant  in  error,  that  the  case  of 
Livingston  v.  Ten  Broeck,  16  Johns.  R.  14,  contains  a  contrary  doc- 
trine. It  was  conceded  that  the  question  of  extinguishment  did  not 
arise  in  that  case,  but  the  learned  judge  who  gave  the  opinion  of  the 
court  does  say  that  common  appurtenant  can  be  apportioned,  and  he 
refers  to  several  cases  as  sustaining  the  position,  all  of  which  cases 
are  cases  of  common  pasture. 

It  will  be  seen,  by  applying  these  principles  to  this  case,  that  Jacob 
Truax  was  entitled  to  common;  but  when  he  conveyed  his  farm,  on 
the  15th  December,  1769,  part  to  one  son  and  part  to  another, 
thereby  creating  two  farms  out  of  the  one  entitled  to  common,  such 
right  being  an  entirety,  not  being  apportionable,  could  not  be 
enjoyed  by  either,  and,  of  course,  was  extinguished.  This  is  the 
main  point  in  the  case,  and  is  decisive  of  it. 

Several  other  questions  were  raised  and  discussed;  such  as  whether 
the  lord  had  a  right  to  enclose  any  part  of  the  common;  and  if  so, 
whether  the  lease  in  the  present  case  was  such  an  improvement  as 
would  exempt  the  locus  in  quo  from  being  subject  to  the  right  of  com- 
mon ;  and  whether  the  plaintiff  had  such  a  possession  as  would  entitle 
him  to  maintain  trespass,  which  questions  I  will  notice,  but  not 
discuss  at  large.  1.  The  possession  of  the  plaintiff  was  sufficient 
against  a  stranger;  he  showed  title  to  lands  which  were  not  in  the 
actual  possession  of  any  other;  he  was  therefore  in  possession,  as 
in  such  cases  the  possession  follows  the  title.  2.  There  is  no  doubt 
that  the  lord  has  a  right  to  improve  his  waste  lands,  provided  he 
leaves  enough  for  those  who  are  entitled  to  common.  There  can  be 
as  little  doubt,  I  think,  that  the  improvement,  to  bar  a  common,  must 
be  an  actual  bona  fide  improvement ;  not  a  mere  possession  fence,  run 
around  a  piece  of  woods.  But  as  I  hold  the  right  of  estovers  in  this 
case  was  gone,  the  defendant  and  those  whose  estate  he  represents 
have  no  right  to  raise  that  question;  they  are  mere  strangers,  and 
as  against  such  the  plaintiff's  title  and  possession  were  sufficient. 

The  law  is  established  in  England  and  recognized  in  the  case  of 
Livingston  v.  Ten  Broeck,  that  if  the  commoner  purchases  part  of 


480  USE   OF   ANOTHER'S    LAND.        [FT.  III.  CH.  III. 

the  land  subject  to  common,  if  the  right  of  common  be  apportiona- 
ble,  it  shall  be  apportioned,  otherwise  the  whole  is  extinguished;  but 
that  principle  seems  to  be  not  applicable  here.  The  John  Truax 
farm  was  purchased  by  John  Tayler  in  1791,  long  before  he  had  any 
interest  in  the  Jacob  Truax  farm,  which  was  entitled  to  common. 
The  ground  of  that  extinguishment  is  this:  that  the  commoner  has 
voluntarily  consented  to  the  diminution  of  the  common  out  of  which 
his  pasture  or  estovers  were  to  be  enjoyed;  and  where  there  can  be 
no  apportionment,  there  must  be  an  extinguishment. 

Upon  the  whole  case,  therefore,  I  am  of  opinion:  1.  That  the 
plaintiff,  as  against  the  defendant,  has  shown  a  sufficient  possession 
of  the  locus  in  quo;  2.  That  common  of  estovers  is  not  apportiona- 
ble,  and,  of  course,  that  though  Jacob  Truax  was  entitled  to  estovers, 
yet  his  sons,  to  whom  his  farm  was  conveyed  in  parcels,  and  their 
assigns,  never  had  any  such  right;  and  3.  That  consequently  the 
defendant  was  a  trespasser  in  cutting  the  rails  in  question,  and  the 
plaintiff  should  have  recovered  in  the  court  below. 

Judgment  of  the  common  pleas  reversed,  with  single  costs,  and  a 
venire  de  novo  to  issue. 


III.  Under  licenses. 


COOK  v.  STEARNS. 

11  Massachusetts,  533.  —  1814. 


Parker,  C.  J.  — The  question  presented  by  the  demurrer  and 
joinder  in  this  case  is,  whether  the  facts  set  forth  in  the  plea  in  bar 
amount  to  a  justification  of  the  trespass  complained  of  in  the 
declaration. 

The  possession  of  the  locus  in  quo  is  admitted  to  be  in  the  plaintiff; 
and  no  title  to  it  is  claimed  by  the  defendant  in  his  plea.  But  he 
claims  a  right  to  enter  upon  it,  for  the  purpose  of  repairing  the  dam 
and  bank,  and  clearing  the  canal  from  obstruction;  because  those, 
whose  estates  the  plaintiff  now  holds,  permitted  him  to  enter  and 
make  the  bank,  and  dig  the  canal;  from  which  permission  he  would 
infer  a  right  to  enter  and  use  the  soil  as  often  as  the  state  of  the 
mill  owned  by  him  should  require  it.  He  has  not  described  the  mill 
a-  ancient,  nor  set  up  any  prescriptive  right  to  an  easement  in  the 
"I  the  plaintiff;  but  alleges  that  he  had  the  consent  legally 
obtained  to  erect  his  works,  of  the  former  owner  of  the  close;  and 
1)''  ause  of  that  consent,  the  works  being  out  of  repair,  he  entered 
to  make  the  necessary  repairs. 

It   is   evident,  therefore,  that  the  defendants  claim  a  permanent 


III.]  UNDER   LICENSES.  48 1 

interest  in  the  plaintiff's  close,  a  right  to  maintain  the  bank,  dam  and 
canal,  which  he  formerly  placed  there  by  consent,  and  to  enter  upon 
the  plaintiff's  close  at  any  time  to  make  necessary  repairs,  Now, 
this  is  an  interest  in  land,  which  cannot  by  our  statutes  of  1783,  c. 
37,  pass  without  deed  or  writing;  for  all  interests  in  lands,  according 
to  that  statute,  whether  certain  or  uncertain,  are  declared  to  be 
estates  at  will,  unless  the  evidence  of  them  exists  in  deed  or  writing; 
and  if  a  continuation  of  the  interest  is  intended  for  seven  years,  it 
must  not  only  be  passed  by  deed,  but  the  deed  must  be  acknowledged 
and  registered  in  the  same  manner  as  is  required  in  the  transfer  of 
a  fee. 

The  defendant  not  having  alleged  that  he  acquired  the  right, 
which  he  claims,  by  deed  or  writing,  his  plea  is  for  that  cause  bad. 
After  a  verdict  perhaps  this  defect  would  be  cured;  because  it  would 
be  presumed  that  the  evidence,  which  the  law  requires  to  establish 
such  an  interest  as  is  claimed,  had  been  exhibited;  but  on  demurrer, 
where  a  right  in  land  is  set  up  as  a  satisfaction  for  a  trespass,  the 
manner  in  which  that  right  was  acquired  should  be  averred,  that  the 
court  may  immediately  determine  whether  it  was  a  lawful  convey- 
ance of  the  right  or  not. 

But  the  counsel  for  the  defendant,  aware  that  they  could  not  set 
up  any  estate  of  a  permanent  nature  in  the  plaintiff's  close,  without 
averring  and  proving  a  deed  or  some  other  lawful  conveyance,  have 
considered  the  facts  alleged  in  his  plea  as  amounting  to  a  license, 
given  him  by  the  former  owner  of  the  land,  to  make  the  dam,  bank 
and  canal;  and  they  have  contended,  first,  that  such  license  may  be 
by  parol;  and,  secondly,  that  it  is  not  in  its  nature  countermandable, 
from  which  they  would  infer  that  a  right  continues  in  him  to  main 
tain  the  dam,  etc.,  and  to  enter  upon  the  plaintiff's  close  to  repair 
them  to  ties  quoties,  etc. 

This  argument  had  some  plausibility  in  it,  when  it  was  first  stated. 
But  upon  more  mature  consideration  it  seems  to  have  no  foundation 
in  principles  of  law. 

A  license  is  technically  an  authority  given  to  do  some  one  act,  or 
a  series  of  acts  on  the  land  of  another,  without  passing  any  estate 
in  the  land,  such  as  a  license  to  hunt  in  another's  land,  or  to  cut 
down  a  certain  number  of  trees.  These  are  held  to  be  revocable 
when  executory,  unless  a  definite  term  is  fixed,  but  irrevocable  when 
executed.  See  Viner's  Abridgment,  title  License,  A,  E,  D,  G,  and 
the  authorities  therein  cited,  which  have  been  examined  and  found 
to  support  the  positions  laid  down  by  the  compiler.  It  is  also 
holden  that  such  licenses  to  do  a  particular  act,  but  passing  no 
estate,  may  be  pleaded  without  deed.     But  licenses,  which  in  their 

LAW  OF  PROP.  IN  LAND  —  3 1 


482  USE   OF  ANOTHER'S   LAND.  [PT.  III.  CH.  III. 

nature  amount  to  the  granting  of  an  estate  for  ever  so  short  a  time, 
are  not  good  without  deed,  and  are  considered  as  leases,  and  must 
always  be  pleaded  as  such. 

The  distinction  is  obvious.  Licenses  to  do  a  particular  act  do 
not  in  any  degree  trench  upon  the  policy  of  the  law,  which  requires 
that  bargains  respecting  the  title  or  interest  in  real  estate  shall  be  by 
deed  or  in  writing.  They  amount  to  nothing  more  than  an  excuse 
for  the  act,  which  would  otherwise  be  a  trespass.  But  a  permanent 
right  to  hold  another's  land  for  a  particular  purpose,  and  to  enter 
upon  it  at  all  times  without  his  consent,  is  an  important  interest, 
which  ought  not  to  pass  without  writing,  and  is  the  very  object  pro- 
vided for  by  our  statute.  If  the  defendant  had  a  license  from  the 
former  owners  of  the  plaintiff's  close,  to  make  the  bank,  dam  and 
canal  in  their  land,  this  extended  only  to  the  act  done,  so  as  to  save 
him  from  their  action  of  trespass  for  that  particular  act;  but  it  did 
not  carry  with  it  an  authority,  at  any  future  time,  to  enter  upon  the 
land.  As  to  so  much  of  the  license  as  was  not  executed,  it  was  coun- 
termandable;  and  transfering  the  land  to  another,  or  even  leasing 
it  without  any  reservation,  would  of  itself,  be  a  countermand  of  the 
license.  For  although,  when  one  is  permitted  to  do  certain  things 
upon  the  land  of  another,  an  implied  authority  is  given  to  enter 
upon  the  land  to  do  the  thing,  and  to  repair  it,  if  it  is  of  a  permanent 
nature;  yet  the  first  permission  or  license  must  be  by  grant,  in  order 
to  draw  after  it  this  consequence. 

We  are  also  all  satisfied,  that  the  plea  is  in  this  respect  bad;  it  not 
showing  such  a  license  as  may  be  pleaded,  and,  indeed,  the  interest 
claimed  being  not  in  the  nature  of  a  license  but  of  an  estate,  or  at 
least  an  easement  in  the  land,  which  cannot  be  acquired  without 
writing  or  prescription,  or  such  a  possession  or  use  as  furnishes  pre- 
sumption of  a  grant;  neither  of  which  is  averred  in  this  plea. 

If  the  defendant's  piea  were  held  to  be  a  bar  to  the  action,  all  the 
mischiefs  and  uncertainties,  which  the  legislature  intended  to  avoid 
by  requiring  such  bargains  to  be  put  in  writing,  would  be  revived; 
and  purchasers  of  estates  would  be  without  the  means  of  knowing 
whether  incumbrances  existed  or  not  on  the  land  which  they  purchase. 

It  has  been  argued  that  by  the  act  providing  for  the  support  and 
regulation  of  mills,  a  right  to  acquire  property  in  the  land  of 
another,  for  the  purpose  of  erecting  or  carrying  on  a  mill,  is  con- 
templated to  exist  by  parol.  But  that  statute  did  not  provide  a  mode 
of  acquiring  title  to  the  mill  or  the  land;  but  merely  superadded  the 
ri.^ht  of  flowing  land,  upon  compensation,  according  to  the  statute, 
by  those  who  had  legally  obtained  the  right  to  build  a  mill. 

The  defendant's  plea  is  adjudged  bad. 


PART   IV. 
Of  Estates  and  Other  Interests  in  Land. 


CHAPTER  I. 
Estates  as  to  Quantity  and  Quality:    Freeholds. 
I.  Freeholds  of  inheritance  or  fees. 

i.   Limitation  of  a  Fee  in  Its  Creation  or  Transfer. 
Words  of  Limitation. 

a.   By  deed  inter  vivos  —  at  common  law. 

(i.)  The  General  Rule  as  to  Necessity  for  Technical  Words  of  Limitation 
in  a  Transfer  or  Reservation. 

ADAMS  v.  ROSS. 

30  New  Jersey  Law,  505.  —  i860. 

Application  by  Ross,  mortgagee,  for  moneys  paid  into  court  as 
the  value  of  a  portion  of  the  mortgaged  premises  taken  in  fee  by 
the  Erie  Railroad  Co.,  by  exercise  of  the  right  of  eminent  domain 
under  its  charter.  Ross  claimed  the  whole  of  the  money;  other  par- 
ties claim  to  be  interested.  The  court  below  allowed  Ross  but  a 
part  of  his  claim  and  from  that  decision  he  brings  error  to  this 
court.     The  facts  appear  at  large  in  the  opinion. 

Whelpley,  J.  — -  This  writ  of  error  brings  up  for  review  the  judg- 
ment of  the  Supreme  Court,  giving  a  construction  to  a  deed,  dated 
the  9th  of  September,  1854,  between  Anna  V.  Traphagen,  of  the 
first  part,  and  Catharine  Ann  V.  B.  Adams,  wife  of  Alonzo  Whitney 
Adams,  of  the  second  part,  by  which  the  grantor,  in  consideration 
of  natural  love  and  affection  and  of  one  dollar,  conveyed  to  the 
grantee  the  premises  in  the  deed  described.  The  operative  words 
are  grant,  bargain,  sell,  alien,  remise,  release,  convey,  and  confirm 
unto  the  said  party  of  the  second   part,  for  and  during  her  natural 

[483] 


484        ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  I. 

life,  and  at  her  death  to  her  children  which  may  be  gotten  of  her 
present  husband:  to  have  and  to  hold  the  above  described  premises 
unto  the  said  party  of  the  second  part  for  and  during  her  natural 
life,  and  at  her  death  to  her  children  which  may  be  gotten  of  her 
present  husband,  Alonzo  W.  Adams. 

The  deed  contains  covenants  of  seizin,  for  quiet  enjoyment, 
against  encumbrances,  for  further  assurance  and  of  warranty. 
These  covenants  are  made  by  the  grantor  for  herself  and  her  heirs 
with  the  party  of  the  second  part,  her  heirs  and  assigns. 

Mrs.  Adams,  at  the  date  of  the  conveyance  to  her,  was  a  minor. 
On  the  12th  October,  1S55,  she,  with  her  husband,  executed  a  mort- 
gage to  secure  the  payment  of  $6,000  in  one  year  from  date,  upon 
the  premises  conveyed  to  her.  She  was  then  nineteen.  The  mort- 
gage was  to  Ross,  the  applicant  in  the  Supreme  Court. 

The  Erie  Railway  Company,  under  the  provision  of  an  act  of  the 
legislature  took  a  part  of  the  land  in  question,  and  hold  it  in  fee 
simple.  The  value  of  the  land  taken  has  been  ascertained  at 
$3,061;  that  is  now  in  the  Supreme  Court,  to  be  awarded  to  the 
parties  entitled  to  it,  and  who  they  are  must  depend  upon  the  true 
construction  of  the  deed. 

What,  then,  are  the  rights  of  Mrs.  Adams,  her  husband  and  chil- 
dren, one  having  been  born  of  the  marriage  since  the  conveyance; 
and  what,  if  any,  are  the  rights  of  Ross,  the  mortgagee  to  the 
money  in  court. 

The  Supreme  Court  held,  that  the  estate  granted  by  the  deed  was 
an  estate  in  fee  tail  special  in  Catharine  Adams  and  the  heirs  of  her 
body  by  her  present  husband;  that  her  husband  was  entitled  to  cur- 
tesy; that  the  mortgage  to  Ross  on  the  interest  of  Mrs.  Adams  was 
void  as  to  her,  but  was  a  lien  upon  the  estate  of  her  husband,  in 
case  he  survived  her. 

This  decision  was  reached  by  interpreting  the  word  "  children," 
in  the  deed,  as  equivalent  "  to  heirs,  calling  in  the  covenants  in  aid 
of  that  interpretation,  as  throwing  light  upon  what  the  court  called 
the  intention  of  the  grantor. 

The  Supreme  Court  was  right  in  holding  the  first  estate  conveyed 
to  Mrs.  Adams,  not  a  fee  simple;  the  express  limitation  of  the  estate 
to  her  during  life,  and  after  her  death  to  her  children,  forbade  any 
other  conclusion.  The  covenant,  warranting  the  land  to  her  and 
her  heirs  general,  cannot  enlarge  the  estate,  nor  pass  by  estoppel  a 
Xyc;i.\'T  estate  than  that  expressly  conveyed.  A  party  cannot  be 
iped  by  a  deed,  or  the  covenants  contained  in  it,  from  setting 
np  thai  a  fee  simple  did  not  pass,  when  the  deed  expressly  shows  on 
its  far,;  exai  tly  what  estate  did  pass,  and  that  it  was  less  than  a  fee. 


I.  i.]  FREEHOLDS  OF  INHERITANCE   OR   FEES.  485 

Rawle  on  Cov.  for  Title,  420;  Blanchard  v.  Brook,  12  Pick.  67;  2  Co. 
Litt.  385/,. 

Lord  Coke  expressly  says:  But  a  warranty  of  itself  cannot  enlarge 
an  estate  as  if  the  lessor  by  deed  release  to  his  lessee  for  life,  and 
warrant  the  land  to  the  lessee  and  his  heirs;  yet  doth  not  this 
enlarge  his  estate. 

Justice  Vredenburgh,  in  his  opinion,  admits  this  to  be  law.  He 
says,  although  the  covenants  cannot  be  used  to  enlarge  the  estate, 
yet  they  may  be  used  to  show  in  what  sense  the  words  in  the  con- 
veying part  of  the  deed  were  used.  What  is  that  but  enlarging 
what  would  otherwise  be  their  meaning?  If  without  explanation 
they  are  insufficient  to  pass  the  estate,  does  not  the  explanation 
enlarge  their  operation? 

The  learned  judge,  in  his  elaborate  opinion,  says:  From  these 
covenants,  it  is  demonstrated  that,  by  the  terms  children  by  her 
present  husband,  the  grantor  intended  the  heirs  of  her  body  by  her 
present  husband.  It  follows  from  this  argument,  that  although  the 
conveying  part  of  the  deed  may  not  contain  sufficient  to  convey  the 
estate  as  a  fee  simple,  for  example,  yet  that  if  the  covenants  show 
an  intent  to  pass  a  fee  simple,  it  will  pass. 

The  argument  is,  that  the  words  of  conveyance  and  covenant 
must  be  construed  together.  If  the  covenants  look  to  the  larger 
estate,  that  will  pass  upon  the  intent  indicated.  Children  are  said 
to  be  equivalent  to  heirs,  because  she  warranted  to  her  heirs;  and 
the  heirs  are  said  to  be  not  heirs  general,  because  she  called  them 
children. 

The  inconsistency  between  the  conveyance  and  covenant  shows 
mistake  in  the  one  or  the  other.  The  safest  rule  of  construction  is 
that  propounded  by  the  Supreme  Court;  that  the  quantity  of  the 
estate  conveyed  must  depend  upon  the  operative  words  of  convey- 
ance, and  not  upon  the  covenants  defending  the  quantity  of  estate 
conveyed. 

Starting  with  that  premise,  it  seems  difficult,  nay  impossible,  to 
reach  the  conclusion,  that  the  covenants  are  to  be  looked  to  in  the 
interpretation  of  the  conveyance,  as  such. 

The  covenants  only  attach  to  the  estate  granted,  or  purporting  to 
be  granted.  If  a  life  estate  only  be  expressly  conveyed,  the  cove- 
nantor warrants  nothing  more.  The  conveyance  is  the  principal, 
the  covenant  the  incident.  If  they  do  not  expressly  enlarge  the 
estate  passed  by  the  operative  words  of  the  deed,  I  cannot  perceive 
upon  what  sound  principle  of  construction  they  can  have  that  effect 
indirectly  by  throwing  light  on  the  intention  of  the  grantor.  In  the 
construction   of  a  deed   of   conveyance   the   question   is,  not   what 


486      ESTATES   AS   TO    QUANTITY    AND    QUALITY.      [PT.  IV.   CH.  I. 

estate  did  the  grantor  intend  to  pass,  but  what  did  he  pass  by  apt 
and  proper  words.  If  he  has  failed  to  use  the  proper  words,  no 
expression  of  intent,  no  amount  of  recital,  showing  the  intention, 
will  supply  the  omission,  although  it  may  preserve  the  rights  of  the 
party  under  the  covenant  for  further  assurance  or  in  equity  upon  a 
bill  to  reform  the  deed. 

The  object  of  the  covenants  of  a  deed  is  to  defend  the  estate 
passed,  not  to  enlarge  or  narrow  it.  To  adopt,  as  a  settled  rule  of 
interpretation,  that  deeds  are  to  be  construed  like  wills,  according 
to  the  presumed  intent  of  the  parties  making  them,  to  be  deduced 
from  an  examination  of  the  whole  instrument,  would  be  dangerous, 
and,  in  my  judgment,  in  the  last  degree  inexpedient.  It  is  far  better 
to  adhere  to  the  rigid  rules  established  and  firmly  settled  for  cen- 
turies, than  to  open  so  wide  a  door,  for  litigation,  and  render  uncer- 
tain the  titles  to  lands.  The  experience  of  courts  in  the  construc- 
tion of  wills,  the  difficulty  in  getting  at  the  real  intent  of  the  party, 
where  imperfectly  expressed,  or  where  he  had  none;  the  doubt 
which  always  exists  in  such  cases,  whether  the  court  has  spelt  out 
what  the  party  meant,  all  combine  to  show  the  importance  of  adher- 
ing to  the  rule,  that  the  grantor  of  a  deed  must  express  his  intent 
by  the  use  ol  the  necessary  words  of  conveyance,  as  they  have 
been  settled  long  ago  by  judicial  decision  and  the  writings  of  the 
sages  of  the  law.  Upon  this  point,  it  is  not  safe  to  yield  an  inch; 
if  that  is  done,  the  rule  is  effectually  broken  down.  Where  shall  we 
stop  if  we  start  here? 

Littleton  says:  Tenant  in  fee  simple  is  he  which  hath  lands  or 
tenements  to  hold  to  him  and  his  heirs  forever.  For  if  a  man  would 
purchase  lands  or  tenements  in  fee  simple,  it  behooveth  him  to  have 
these  words  in  his  purchase:  "  To  have  and  hold  to  him  and  his 
heirs."  For  these  words,  "  his  heirs,"  make  the  estate  of  inherit- 
ance. For  if  a  man  purchase  lands  by  these  words,  "  to  have  and  to 
hold  to  him  forever,"  or  by  these  words,  "  to  have  and  to  hold  to 
him  and  his  assigns  forever,"  in  these  two  cases  he  hath  but  an 
estate  for  life,  for  that  there  lack  these  words,  "  his  heirs,"  which 
words  only  make  an  estate  of  inheritance,  in  all  feoffments  and 
grants. 

'  These  words,  '  his  heires,'  doe  not  only  extend  to  his  immediate 
heires,  but  to  his  heires  remote  and  most  remote,  born  and  to  be 
born,  sub  t/uibus  vocabulis  ' hceredibus  si/is'  omnes  hceredes,  propinqui 
comprehenduntur,  et  remoti,  nati  et  fiascituri  and  hotredum  appellatione 
veniunt,  hceredes  hoeredum  in  infinitum.  And  the  reason  wherefore  the 
law  is  so  precise  to  prescribe  certaine  words  to  create  an  estate  of 
inherit. ui<  e,  is  for  avoiding  of  uncertainty,  the  mother  of  contention 


I.  I.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  487 

and  confusion."  Co.  Lit.,  vol.  1,1  a,  &  bj  1  Shep.  Touch.  101; 
Com.  Dig.,  tit.  Estate,  A,  2;  Preston  on  Est.,  1,  2,  3,  4,  5;  4 
Cruise's  Dig.,  tit.  32^,  21c,  1. 

There  are  but  two  or  three  exceptions  to  this  rule.  The  cases  of 
sole  and  aggregate  corporations,  and  where  words  of  reference  are 
used  "as  fully  as  he  enfeoffed  me."  A  gift  in  frank  marriage, 
etc.,  which  are  to  be  found  stated  in  the  authorities  already  cited. 

These  exceptions  create  no  confusion;  they  are  as  clearly  defined 
and  limited  as  the  rule  itself. 

The  word  "  heirs  "  is  as  necessary  in  the  creation  of  an  estate  tail 
as  a  fee  simple.  1  Co.  Lit.  20,  a;  4  Cruise's  Dig.,  tit.  32  e,  22,  §1154 
Kent's  Com.  6;  Bl.  Com.  114. 

This  author  sets  this  doctrine  in  clear  light.  He  says:  As  the 
word  heirs  is  necessary  to  create  a  fee,  so,  in  further  limitation  of 
the  strictness  of  feodal  donation,  the  word  body,  or  some  other 
word  of  procreation,  is  necessary  to  make  it  a  fee  tail.  If,  there- 
fore, the  words  of  inheritance  or  words  of  procreation  be  omitted, 
albeit  the  other  words  are  inserted  in  the  grant,  this  will  not  make 
an  estate  tail,  as  if  the  grant  be  to  a  man,  and  his  issue  of  her  body, 
to  a  man  and  his  seed,  to  a  man  and  his  children  or  offspring,  all 
these  are  only  estates  for  life,  there  wanting  the  words  of  inherit- 
ance. 

The  rule  in  Shelley's  Case,  that  when  the  ancestor,  by  any  gift  or 
conveyance,  takes  an  estate  of  freehold,  and  in  the  same  gift  or 
conveyance  an  estate  is  limited  either  immediately  or  mediately  to 
his  heirs  in  fee  or  in  tail,  that  always  in  such  cases  the  word  heirs 
are  words  of  limitation,  and  not  of  purchase,  1  Rep.  93;  4  Cruise's 
Dig.,  c.  23,  §  3,  tit.  32,  require  the  use  of  the  word  heirs  to  bring  it 
in  operation. 

No  circumlocution  has  been  ever  held  sufficient.  It  is  believed 
no  case  can  be  found  where  this  rule  has  been  held  to  apply  unless 
the  word  heirs  has  been  used  in  the  second  limitation. 

Neither  the  researches  of  the  learned  judge  who  delivered  the 
opinion  of  the  Supreme  Court,  nor  those  of  the  very  diligent  coun- 
sel who  argued  the  case  here,  have  produced  a  case  decided  in  Eng- 
land or  in  any  state  of  this  Union  abiding  by  the  common  law, 
where,  in  a  conveyance  by  deed,  the  word  children  has  been  held  to 
be  equivalent  to  heirs.  That  this  has  been  determined  in  regard  to 
wills  is  freely  conceded,  but  that  does  not  answer  the  requisition. 
The  reasoning  of  the  Supreme  Court  is,  to  my  mind,  entirely 
unsatisfactory.  In  the  administration  of  the  law  of  real  estate,  I 
prefer  to  stand  super  antiquas  vias,  stare  decisis;  to  maintain  the  great 
rules  of  property,  to  adopt  no  new  dogma,  however  convenient  it 


488      ESTATES   AS   TO   QUANTITY   AND   QUALITY.       [PT.   IV.  CM.  I. 

may  seem  to  be.  The  refined  course  of  reasoning  adopted  in  the 
face  of  so  great  a  weight  of  authority  rather  shows  what  the  law 
might  have  been,  than  what  it  is. 

I  am  utterly  unprepared  to  overturn  the  common  law,  as  under- 
stood by  Littleton,  Coke,  Shepherd,  Cruise,  Blackstone,  Kent,  and 
all  the  judges  who  have  administered  it  for  three  centuries,  and  to 
adopt  the  dogma,  that  intention,  not  expression,  is  hereafter  to  be 
the  guide  in  the  construction  of  deeds.  That  would  be  as  unwar- 
rantable as  dangerous. 

Under  this  deed,  Mrs.  Adams  took  an  estate  for  life,  which  was 
not  enlarged  by  the  subsequent  limitation  to  a  fee  tail.  The 
remainder  vested  in  Anna  Adams,  the  child  of  the  marriage,  for 
life,  subject  to  open  and  let  in  after-born  children  to  the  same 
estate. 

The  deed  operated  as  a  covenant  to  stand  seized.  The  proper 
and  technical  words  of  such  a  conveyance  are,  stand  seized  to  the 
use  of,  etc.;  but  any  other  words  will  have  the  same  effect,  if  it 
appear  to  have  been  the  intention  of  the  parties  to  use  them  for 
that  purpose.  The  words  bargain  and  sell,  give,  grant,  and  con- 
firm, have  been  allowed  so  to  operate.  4  Cruise,  tit.  32,  c.  10,  §§ 
1,  2. 

By  such  a  covenant,  an  estate  may  be  limited  to  a  person  not  in 
esse,  if  within  the  considerations  of  blood  or  marriage.  Fearne  on 
Rem.  2S8;  1  Rep.  154,  a;  1  Preston  on  Est.  172,  176;  4  T.  Rep.  39; 
Doe  v.  Martin. 

This  deed,  on  the  face  of  it,  expresses  the  considerations  of  nat- 
ural love  and  affection,  as  well  as  the  money  consideration  of  one 
dollar. 

It  follows,  from  these  considerations,  that  Adams  is  not  entitled 
to  curtesy  in  the  lands  on  surviving  his  wife.  The  mortgage  to 
Ross  created  no  valid  charge  on  the  estate  against  Mrs.  Adams,  she 
being  a  minor  when  it  was  executed. 

Mrs.  Adams,  interest  in  the  land  was  subject  to  the  provisions  of 
the  act  for  the  better  securing  the  property  of  married  woman, 
passed  March  25th,  1852;  the  deed  to  her  was  after  this  act  passed. 

This  was  clearly  a  gift  or  grant,  within  the  meaning  of  the  act. 
The  legislature  did  not  intend  to  limit  the  benefits  of  the  act  to  prop- 
erty conveyed  by  a  deed  operating  as  a  gift  or  grant;  all  the  ordi- 
nal-}' mod*  s  of  acquiring  property  by  deed  were  intended  by  the  use 
of  the  terms  gift,  grant.  The  reasoning  of  Justice  Vredenburgh 
upon  this  point  is  conclusive.  Upon  the  determination  of  the 
respective  life  '-states,  the  land  reverts  to  Miss  Traphagen. 

The   judgment   of   the   Supreme   Court   must   be   reversed.     The 


I.   i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  489 

money  in  court  must  be  invested  for  the  benefit  of  Mrs.  Adams  for 
life,  and  after  her  death  for  the  benefit  of  the  surviving  children  of 
the  marriage,  in  equal  shares,  during  their  respective  lives,  and  at 
their  deaths  respectively;  their  several  shares  must  be  paid  to  Miss. 
Traphagen,  or  if  she  be  then  dead,  to  her  heirs  or  devisees.1 


COLE  v.  THE  LAKE  COMPANY. 

54  New  Hampshire,  242.  — 1S74. 

Bill  in  equity  by  Cole  to  procure  the  reformation  of  a  certain 
lease  and  to  enjoin  the  defendants  from  interfering  with  certain 
structures  erected  by  plaintiff,  which  (as  he  claims),  he  would  have 
had  a  right  to  erect  had  the  written  lease  conformed  to  the  inten- 
tion of  the  parties.  The  court  below  decreed  that  the  lease  be 
reformed  and  granted  the  injunction.  A  further  question  arises  in 
this  court  as  to  whether  the  instrument  as  reformed  is  a  lease  ''  at 
will  "  or  "  for  life,"  or  whether  it  is  to  be  taken  as  a  lease  in  fee, 
reserving  a  fee-farm  rent.  This  court  holds  that  it  is  not  at  will. 
The  discussion  as  to  whether  it  is  for  life  or  in  fee  will  be  found  in 
that  part  of  the  opinion  which  is  reported  below,  together  with  the 
essential  facts.2 

Ladd,  J.  —  *  *  *  The  word  "  heirs  "  does  not  appear  in  the 
lease.  The  defendants  thereupon  contend  that,  at  most,  it  conveys 
only  a  life  estate  to  the  lessees.  The  plaintiff  claims  that  the  whole 
instrument  read  together  is  sufficient  to  give  a  perpetual  right  to 
take  and  use  the  water  upon  the  terms  and  conditions  therein  speci- 
fied, —  that  is,  a  fee,  —  but  at  the  same  time  moves  that  in  case  the 
court  should  be  of  a  different  opinion,  the  lease  may  be  reformed  by 
inserting  the  proper  words  of  inheritance,  so  as  to  express  in  legal 
language  the  actual  contract  of  the  parties  according  to  their  inten- 
tion when  it  was  made. 

Before  proceeding  to  consider  the  question  thus  raised,  we  may 
as  well  say,  that,  from  an  examination  of  the  lease  alone,  without 
resorting  to  extrinsic  evidence  at  all,  we  entertain   no  doubt  that 

1  It  would  seem  that  technical  words  of  limitation  are  still  required  to  pass  a 
fee  in  Maine,  Vermont,  Massachusetts  (see  below,  p.  496,  and  Sedg7uick  v. 
Lajlin,  10  Allen  430),  Rhode  Island,  Connecticut,  Pennsylvania,  New  Jersey, 
Delaware,  South  Carolina,  Florida,  Ohio  and  Wyoming.  For  the  New  Hamp- 
shire common-law  rule,  see  below,  Cole  v.  The  Lake  Co.,  p.  489.  —  Ed. 

2  A  large  part  of  the  opinion  is  omitted.  The  part  printed  is  useful  here 
mainly  as  explaining  and  illustrating  feudal  doctrine.  —  Ed. 


490      ESTATES    AS   TO    QUANTITY   AND   QUALITY.       [PT.  IV.  CH.  I. 

the  understanding  and  contract  of  the  parties  were  as  claimed  by 
the  plaintiff.  The  defendants  demised  and  leased  to  the  plaintiff 
and  others  the  right  to  draw  a  certain  quantity  of  water  from  their 
canal  through  a  flume  to  the  plaintiff's  mills  and  buildings  on  certain 
land,  for  the  use  and  operation  of  the  plaintiff's  mills  and  machin- 
ery; gave  the  plaintiff  the  right  to  maintain  the  flume  and  keep  it  in 
repair,  and  for  that  purpose  to  enter  upon  the  defendants'  land, 
"  to  have  and  to  hold  said  demised  premises  to  the  said  lessees, 
paying  a  certain  yearly  rent."  Everything  included  in  those  stipu- 
lations "  shall  extend  to  and  bind  their  legal  representatives;  "  the 
fair  meaning  of  which  is  that  every  right  of  the  parties  under  the 
instrument  shall  extend  to  their  legal  representatives.  This  is  all 
expressed  in  the  common  language  of  the  country.  No  technical 
words,  presumed  to  be  used  in  a  settled,  technical,  legal  sense,  are 
employed.  The  intention  of  the  parties  is  therefore  to  be  found  in 
the  ordinary,  natural,  and  popular  signification  of  the  written 
language  in  which  they  choose  to  express  themselves.  In  point 
of  fact,  there  is  nothing  for  construction  here  at  all,  for  it  is  a  pri- 
mary maxim  that  it  is  not  permitted  to  interpret  what  has  no  need 
of  interpretation.  It  is  not  permitted  to  the  court  to  defeat  the 
plainly  expressed  intention  of  the  parties,  by  distorting,  explaining 
away,  or  wresting  from  its  commonly  received  import  the  language 
they  have  used,  under  the  name  and  guise  of  construction. 

The  language  of  this  lease,  in  its  ordinary,  natural,  and  popular 
sense,  makes  the  intention  of  the  parties  to  pass  a  perpetual  right 
obvious  and  unmistakable.  Such  being,  in  fact,  the  manifest  mean- 
ing of  the  instrument,  and  the  indubitable  intention  of  the  parties 
as  therein  expressed,  it  might  not  be  difficult  to  find  authority  on 
which  to  hold  that  the  deed  should  be  treated  as  reformed  in  con- 
formity with  that  intention  under  the  prayer  for  general  relief  in 
the  bill.     Busby  v.  Little  field,  31  N.  H.  200,  and  authorities  cited. 

There  may  also  be  room  for  doubt  whether  the  defendants,  hav- 
ing entered  into  a  covenant  in  terms  undeniably  sufficient  to  bind  a 
corporation  of  this  sort  forever,  could  be  permitted  to  repudiate  it 
on  the  ground  that  the  estate  is  limited  to  the  legal  representatives 
rather  than  the  heirs  of  the  lessees,  so  long  as  the  conditions  upon 
which  the  estate  was  granted  continue  to  be  performed  by  any  one 
who  comes  within  the  class  designated  by  the  term  legal  representa- 
tives. Coke  Litt.  9  /'.  94  </. ;  2  Bl.  Com.  108,  notes;  4  Kent  Com. 
7;  1  VVashb.  R.  P.  58.  We  have  not  chosen,  however,  to  examine 
cither  of  these  propositions,  but  prefer,  rather,  to  inquire  whether 
there  exists  in  this  state  any  law  whereby  a  legal  contract,  fairiy  and 
openly  concluded   between   the  parties,  and   by   them  put   in  writing 


I.  i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  49I 

in  terms  so  plain  as  to  leave  no  room  for  doubt  as  to  the  obligations 
they  have  thereby  mutually  assumed,  is  set  aside  and  nullified  for 
want  of  a  single  word,  purely  technical  in  its  legal  effect,  which 
adds  nothing  to  the  sense  of  the  instrument,  and  can  only  be  made 
consistent  with  the  intention  it  is  held  to  express  by  an  interpreta- 
tion which  withdraws  it  entirely  from  all  the  ordinary  uses  of  the 
language  in  which  it  is  found.  There  being  no  doubt  as  to  what 
the  contract  between  these  parties  was,  no  doubt  as  to  the  meaning 
of  the  lease,  the  question  we  propose  to  consider  is,  whether  that 
contract  is  to  be  destroyed  by  an  application  of  the  proposition  that 
to  create  a  fee  the  word  "  heirs  "  must  be  employed. 

Suppose  A.,  being  the  owner  in  fee  of  a  piece  of  land,  by  a  deed 
duly  executed,  conveys  to  B.  all  "  his  estate  and  interest  therein," 
and  expressly  declares  in  the  same  deed  that  B.,  having  paid  him 
the  full  value  of  the  land,  it  is  his  intention,  and  the  effect  of  the 
deed  shall  be,  to  pass  an  absolute  title  in  fee  simple  to  B  A  rule 
of  law  defeating  that  intention  and  preventing  the  deed  from  hav- 
ing the  effect  intended  to  be  given  by  its  express  terms  —  constru- 
ing the  language,  "  This  deed  shall  pass,  and  shall  be  construed  to 
pass,  a  fee,"  to  mean  "  This  shall  not  pass,  and  shall  be  construed  not 
to  pass  a  fee  "  because  the  superfluous  word  "  heirs  "  was  not 
used  —  would  undoubtedly  strike  the  unlearned  with  a  degree  of 
astonishment.  Such  a  rule  must  appear  to  an  intelligent  layman, 
unfamiliar  with  the  mysteries  of  the  fossil  remains  of  feudal  institu- 
tions, as  arbitrary,  destructive,  tyrannical,  and  in  most  violent  con- 
flict with  all  ideas  of  legal  reason  which  such  a  person  can 
comprehend. 

The  question  whether  that  rule  is  part  of  the  law  of  this  Si  ate  is 
presented  for  our  consideration  in  the  present  case,  in  a  form  which 
differs  in  no  material  respect  from  the  case  supposed  for  illustration. 

It  is  said  to  be  a  rule  of  the  common  law  that  without  the  word 
"heirs"  a  fee-simple  in  land  cannot  pass  by  deed;  and  that  this 
rule  is  so  absolute  and  unyielding,  that,  no  matter  how  clearly  the 
intention  of  the  grantor  to  convey  a  fee  may  be  stated  in  the  deed, 
such  intention  can  be  of  no  avail  without  that  word.  Washb.  R.  P. 
3k.  I.,  ch.  Ill,  sec.  53,  and  authorities  in  notes.  A  priori  we  should 
expect  to  find  a  rule  which  in  its  practical  application  brings  about 
results  so  anomalous  and  absurd,  but  which  is,  nevertheless, 
enforced  with  such  remorseless  rigor  by  the  courts,  upheld  by 
reasons  very  plain  and  very  imperative.  Naturally  we  should  also 
expect  that  the  books,  which  are  full  of  cases  where  its  application 
has  produced  palpable  injustice,  more  or  less  aggravated  according 
to  circumstances,  would  also   be  filled  with  strong  and  conclusive 


492      ESTATES   AS   TO   QUANTITY   AND    QUALITY.        [PT.  IV.  CH.  I. 

reasons  in  its  support  On  the  contrary,  what  does  appear?  I  ven- 
ture to  affirm  that  since  the  revolution  by  which  the  house  of  Stuart 
was  finally  excluded  from  the  British  throne,  when  most  of  the 
shackles  which  feudalism  had  riveted  upon  the  tenure  of  lands 
throughout  the  kingdom  were  removed,  not  a  reason,  nor  the  sem- 
blance of  a  reason,  growing  out  of  the  condition  and  wants  of  soci- 
ety, the  progress  of  civilization,  the  exigencies  of  trade,  or  the 
analogies  of  the  law  can  be  found  in  its  support  in  any  country  or 
state  where  the  common  law  has  been  used. 

The  rule  is  a  feudal  one:  that  it  had  no  place  in  the  laws  of  the 
Saxons  is  shown  by  Reeves.  Speaking  of  the  form  of  charters  at 
about  the  time  of  the  Norman  Conquest,  he  says:  "  The  words  of 
limitation  to  convey  a  fee,  whether  absolute  or  conditional,  were 
divers;  "  and  after  giving  a  number  of  Latin  forms  which  were  used, 
some  of  them  containing  the  word  "  hceredibus"  and  some  not,  he 
continues,  "  from  which  divers  ways  of  limiting  estates  (and  number- 
less other  ways  might  be  produced),  it  must  be  concluded  that  no 
specific  form  had  been  agreed  on  as  necessarily  requisite  to  express 
a  specific  estate;  but  the  intention  of  the  grantor  was  collected,  as 
well  as  could  be,  from  the  terms  in  which  he  had  chosen  to  convey 
his  meaning."      i  Reeves's  Hist.  Law  (Finlason),  42. 

Blackstone  says:  "  This  very  great  nicety  about  the  insertion  of 
the  word  '  heirs  '  in  all  feoffments  and  grants,  in  order  to  vest  a 
fee,  is  plainly  a  relic  of  the  feudal  strictness;  by  which  we  may 
remember  it  was  required  that  the  form  of  the  donation  should  be 
punctually  pursued;  or  that,  as  Cragg  expresses  it  in  words  of 
Baldus,  '  donatio 'ties  sint  stricti  juris  ne  quis  plus  donasse prazsumatur 
quam  in  donatione  expresserit.  And,  therefore,  as  the  personal  abili- 
ties of  the  donee  were  originally  supposed  to  be  the  only  induce- 
ments to  the  gift,  the  donee's  estate  in  the  land  extended  only  to 
his  own  person,  and  subsisted  no  longer  than  his  life;  unless  the 
donor,  by  an  express  provision  in  the  grant,  gave  it  a  longer  con- 
tinuance, and  extended  it  also  to  his  heirs.  2  Bl.  Com.  107,  Chan- 
cellor Kent  says:  "  The  rule  was  founded  originally  on  principles  of 
feudal  policy  which  no  longer  exist,  and  it  has  now  become  entirely 
technical,"  and  he  gives  the  same  reason  for  it  as  Blackstone. 
4  Kent  Com.  6. 

I  -  1  omprehend  fully  the  reasons  which  gave  birth  to  this  rule,  we 
t  to  recall  not  only  the  nature  of  the  feudal  tenures  of  land  in 
land,  but  the  history  of  the  origin  and  development  of  the  sys- 
tem itself,  which  before  the  close  of  the  eleventh  century  had  suc- 
led,  mainly  by  conquesl  and  force,  in  vesting  the  ultimate 
ownership  of  nearly  all  the  lands  in  England,  as  well  as  on  the  con- 


I.  i  ]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  493 

tinent  of  Europe,  in  the  feudal  lords,  and  parcelling  them  out 
among  a  few  military  chieftains  or  leaders  of  bands  of  predatory 
barbarians.     *     *     * 

Blackstone  says:  "At  the  first  introduction  of  feuds,  as  they  were 
gratuitous,  so  also  they  were  precarious,  and  held  at  the  will  of  the 
lord,  who  was  then  the  sole  judge  whether  his  vassal  performed  his 
services  faithfully.  Then  they  became  certain  for  one  or  more 
years.  Among  the  ancient  Germans  they  continued  only  from  year 
to  year.  .  .  .  But,  when  the  general  migration  was  pretty  well 
over  and  a  peaceable  possession  of  the  new-acquired  settlements  had 
introduced  new  customs  and  manners;  when  the  fertility  of  the  soil 
had  encouraged  the  study  of  husbandry,  and  an  affection  for  the  spots 
they  had  cultivated  began  naturally  to  arise  in  the  tillers,  — a  more 
permanent  degree  of  property  was  introduced,  and  feuds  began  now 
to  be  granted  for  the  life  of  the  feudatory.  But  still  feuds  were  not 
yet  hereditary,  though  frequently  granted  by  the  favor  of  the  lord 
to  the  children  of  the  former  possessor;  till  in  process  of  time  it 
became  unusual,  and  was  therefore  thought  hard,  to  reject  the 
heir,  if  he  were  capable  to  perform  the  services.      .  In  pro- 

cess of  time  feuds  came  by  degrees  to  be  universally  extended, 
beyond  the  life  of  the  first  vassal,  to  his  sons,  or  perhaps  to  such 
one  of  them  as  the  lord  should  name,  and  in  this  case  the  form  of 
the  donation  was  strictly  observed;  for,  if  a  feud  was  given  to  a 
man  and  his  sons,  all  his  sons  succeeded  him  in  equal  portions,  and 
as  they  died  off,  their  shares  reverted  to  their  lord,  and  did  not 
descend  to  their  children,  or  even  to  their  surviving  brothers,  as 
not  being  specified  in  the  donation.  But  when  such  a  feud  was 
given  to  a  man  and  his  heirs,  in  general  terms,  then  a  more 
extended  rule  of  succession  took  place;  and  when  the  feudatory 
died,  his  male  descendants  in  infinitum  were  admitted  to  the  succes- 
sion. .  .  .  Other  qualities  of  feuds  were,  that  the  feudatory  could 
not  alien  or  dispose  of  his  feud;  neither  could  he  exchange,  nor  yet 
mortgage,  nor  even  devise  it  by  will,  without  the  consent  of  the  lord. 
For  the  reason  of  conferring  the  feud  being  the  personal  abilities  of 
the  feudatory  to  serve  in  war,  it  was  not  fit  he  should  be  at  liberty 
to  transfer  this  gift,  either  from  himself,  or  from  his  posterity,  who 
were  presumed  to  inherit  his  valor,  to  others  who  might  prove  less 
able."     2  Bl.  Com.  55.     *     *     * 

These  extracts  are  enough  to  show  that  the  word  "  heirs,"  when 
first  introduced  into  charters  and  feoffments,  was  a  word  of  very 
great  importance.  It  enlarged  the  right  of  the  vassal  from  one  held 
either  at  the  will  of  the  lord,  or  for  his  own  life,  to  a  permanent  and 
hereditary  interest.     It  signified  an  undertaking  by  the  lord  that  he 


494      ESTATES   AS   TO   QUANTITY   AND   QUALITY.       [PT.  IV.  CI  I.  I. 

would  accept  the  heir  as  his  vassal,  and  that  all  the  rights  and  obli- 
gations growing  out  of  that  relation  should  be  extended  to  him.  It 
was,  in  effect,  simply  a  stipulation  for  a  renewal  of  the  lease  upon 
the  same  terms  with  the  heir  of  the  first  lessee.  They  also  show  to 
some  extent  the  nature  of  the  institutions  and  condition  of  society 
in  which  the  rule  we  are  speaking  of  originated  and  to  which  it  was 
applicable,  and  strongly  present  the  contrast  between  those  institu- 
tions and  our  own._ 

It  is  important  to  our  inquiry  that  the  utter  repugnancy  and 
hostility  of  feudal  institutions  to  ours  should  be  fully  borne  in 
mind.     *     *     * 

It  was  to  answer  one  of  the  conditions  upon  which  the  existence 
of  such  a  system  depended  that  the  rule  in  question  was  introduced. 
Unless  the  lord  bound  himself  that  the  fief  should  go  to  the  heir  of 
his  vassal,  the  heir  had  no  rights  in  it  on  the  death  of  his  ancestor, 
but  the  lord,  being  the  absolute  owner  of  the  soil,  might  bestow  the 
fief  upon  any  stranger  who  would  enter  into  homage  and  do  fealty 
to  him  for  the  land,  upon  such  new  services  as  he  might  impose. 

The  rule  was  nothing  more  nor  less  than  the  practice  of  the 
feudal  sovereign,  securing  and  perpetuating  his  grasp  upon  all  the 
land,  and  the  service  of  all  the  landholders  in  his  realm.  Its  origin, 
purpose,  and  history  show  it  to  be  in  no  way  adapted  to  our  institu- 
tions, system  of  government,  or  condition  of  society.  As  a  feudal 
rule  of  construction,  it  was  a  recognition  of  the  fact  that  the  vassal 
held  his  lord's  land  upon  the  condition  of  rendering  in  his  own  per- 
son certain  services  to  his  lord.  The  vassal,  thus  holding  the  land 
by  reason  of  the  personal  trust  and  confidence  reposed  in  him  by 
his  lord,  could  not  assign,  nor  could  his  heirs  inherit,  his  obligation 
of  personal  service  on  the  land  held  on  such  a  condition.  Flanders 
v.  Lamp/iear,  9  N.  H.  201;  Eastman  v.  Batchclder,  36  N.  H.  141; 
Bethlehem  v.  Anns,  40  N.  H.  34,  41,  42.  The  feudal  rule  is  inappli- 
cable to  a  conveyance  of  New  Hampshire  land  not  held  by  any  such 
tenure. 

When  the  fetters  which  feudalism  had  fastened  upon  the  tenure 
of  lands  in  England  fell  off,  every  reason  on  which  this  rule  had 
rested  fell  with  them.  Why  should  the  rule  itself  be  retained? 
Lord  Coke  says:  "  Cessante  ratione  legts,  eessat  ipsa  lex."  Coke, 
Litt.  70  b.  And  that  has  come  to  be — indeed,  it  was  then  —  one 
of  the  most  familiar  maxims  of  the  law.  The  fourth  maxim  of  con- 
Struction  of  statutes  laid  down  by  Dwarris  is,  An  act  of  parliament 
cannot  alter  by  reason  of  time;  but  the  common  law  may,  since 
cessante  ratione  eessat  lex.      Potter's  Dwar.  122. 

But  suppose  the  rule  was  retained  in   England  after  the  reason  of 


I.  i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  495 

it  ceased  and  that  it  was  engrafted  upon  the  common  law  at  the 
time  of  the  settlement  of  this  State  and  the  adoption  of  the  consti- 
tution, the  question  is,  Has  it  been  adopted  here?  The  framers  of 
the  constitution,  in  providing  for  the  continuance  of  such  laws  as 
had  theretofore  been  adopted  and  approved,  etc.,  wisely  excepted 
such  parts  thereof  as  should  be  found  repugnant  to  the  rights  and 
liberties  contained  in  that  instrument.  Const.  N.  H.,  art.  90. 
This  implies  that  there  might  be  some  parts  of  the  common  law  to 
which  the  exception  should  be  applied.  With  all  the  devotion  to 
the  general  principles  of  the  common  law  which  eminently  distin- 
guished that  generation  of  men,  they  could  not  fail  to  see  that  as  a 
body  of  municipal  law  it  was  not  wholly  free  from  defects.  They 
must  have  known,  as  Judge  Cooley  says,  that  many  of  its  features 
were  exceedingly  harsh  and  repulsive,  and  gave  unmistakable  proofs 
that  they  had  their  origin  in  times  of  profound  ignorance,  supersti- 
tion, and  barbarism;  that  the  feudal  system,  which  was  essentially 
a  system  of  violence,  disorder,  and  rapine,  gave  birth  to  many  of 
its  maxims;  and  that  some  of  these,  long  after  that  system  had 
passed  away,  might  still  be  traced  in  the  law,  especially  in  the  rules 
which  govern  the  acquisition,  control,  and  enjoyment  of  real  estate. 
Cooley's  Const.  Lim.  22.  Hence  the  exception.  Accordingly  it 
has  many  times  been  held,  under  our  constitution,  that  if  there  is 
any  part  of  the  common  law  incompatible  with  our  institutions  or  not 
adapted  to  our  circumstances,  it  does  not  prevail  here.  Lisbon  v. 
Lyman,  49  N.  H.  582,  and  cases  cited. 

They  who  brought  the  general  body  of  the  common  law  with 
them  to  this  region  might  well  have  omitted  to  bring  the  feudal 
rule,  not  because  it  was  fabricated  in  a  barbaric  age,  but  because  it 
was  designed  and  fitted  to  perpetuate  a  barbaric  condition;  not 
because  it  originated  in  a  foreign  land,  but  because  it  was  not  suited 
to  the  commonwealth  which  our  foreign  ancestors  came  to  this 
country  to  organize;  not  because,  as  a  part  of  the  military  system 
of  Europe,  it  was  less  necessary  in  feudal  times  than  other  compul- 
sory methods  of  filling  armies  and  navies  in  other  times,  but  because 
the  general  feudal  relation  of  lord  and  vassal  not  being  an  incident 
of  New  Hampshire  civilization,  and  the  particular  debt  of  personal 
service  due  from  the  vassal  to  the  lord  (which  the  heirs  of  the  vas- 
sal might  be  incompetent  to  perform)  not  being  a  universal  consid- 
eration of  the  conveyance  of  New  Hampshire  real  estate,  the  feudal 
rule  (requiring  the  word  "  heirs  "  as  evidence  of  the  lord's  intention 
to  assume  the  risk  of  his  vassal's  heirs  being  incapable  of  the  stipu- 
lated service),  was  inapplicable  to  the  situation  and  circumstances 
of  the  emigrants,  and  implied  a  servitude  inconsistent  with  the  prin- 


496      ESTATES   AS   TO   QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

ciples  of  personal  freedom  and  equality  which  pervaded  their  social 
and  political  plan,  hostile  to  the  general  object  of  their  emigration, 
and  particularly  subversive  of  that  absolute  ownership  of  the  soil 
which  they  specially  sought  in  the  new  world. 

It  appears  that  in  Massachusetts,  prior  to  165 1,  the  word  "  heir  " 
was  "  oftentimes  omitted  when  an  estate  of  inheritance  is  intended 
to  be  passed  by  the  parties;  "  and  in  that  year  a  statute  was  passed 
by  the  general  court  introducing  the  feudal  rule,  which  has  been 
maintained  in  that  state  by  statute  ever  since.  Sedgwick  v.  Laflin, 
10  Allen,  430.  When  the  union  which  at  the  time  existed  between 
Massachusetts  and  New  Hampshire  was  dissolved,  the  people  of  the 
latter  province,  1660,  adopted  a  code  made  up  mainly  by  copying 
such  of  the  Massachusetts  statutes  as  they  thought  adapted  to  their 
wants.  In  that  code  this  act  was  omitted,  and  no  statute  on  the 
subject  has  ever  existed  here.  The  word  must  have  been  omitted 
as  often  proportionally  here  as  in  Massachusetts;  and  when  the 
attention  of  our  people  had  been  directed  to  the  subject  by  a  statute 
under  which  they  lived  for  twenty-eight  years,  the  omission  could 
hardly  have  been  accidental.  They  were  for  several  generations 
engaged  in  vigorously  resisting  Mason's  claims  to  a  proprietorship, 
which  if  maintained  would  have  given  him  a  substantial  baronial 
dominion  over  the  whole  province,  with  the  title  of  lord-protector, 
which  he  assumed.  Belk.  Hist.  N.  H.  94  (ed.  1831);  and  see  1 
N.  H.  Prov.  Pap.  433-582.  There  was  nothing  in  their  history  in 
this,  any  more  than  in  the  old  country,  calculated  to  impress  them 
with  the  expediency  of  introducing  the  mediaeval  rule,  either  by 
statute,  or  by  consent  and  general  understanding  without  a  statute. 
We  know  of  no  reason  why  they  should  have  desired  or  intended  to 
do  so. 

The  effect  of  the  Massachusetts  statute  in  Sedgwick  v.  Laflin, 
illustrates  the  difficulties  and  injustice  occasioned  by  importing  a 
rule  so  incompatible  with  American  institutions  as  to  be  capable, 
upon  legal  principles,  of  being  introduced  by  nothing  short  of 
express  legislation.  Like  many  other  arbitrary  rules  that  might  be 
made,  it  would  prevent  some  litigation  that  would  be  necessary  for 
rtaining  the  intention  of  the  parties  upon  rules  of  construction 
elated  to  discover  their  intention.  Put  the  evils  of  such  litiga- 
tion cannot  be  compared  with  the  gross  injustice  that  would  be  per- 
petrated  by  such  a  rule,  arbitrarily  and  summarily  defeating  the 
intention  of  the  parties,  where  the  evidence  happened  not  to  be 
Stiffii  ient  (as  it  would  be  likely  to  be  now  that  the  parties  can  tes- 
tify) to  induce  them  to  resort  to  litigation  to  have  their  deeds 
reformed  and  their  intentions  carried  out  in  suits  in  chancery.    *   *  * 


I.   i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  497 

The  rule  was  not  applied  at  common  law  in  England  to  the  con- 
struction of  wills  —  Coke,  Litt.  322  b. ;  Com.  Dig.,  Devise,  (N.  4); 
Chitty's  Note  2  Bl.  Com.  108  —  nor  in  this  state,  irrespective  of 
the  statute  of  1822  —Fogg  v.  Clark,  1  N.  H.  163;  M'Afee  v.  Gil- 
man,  4  N.  H.  391;  Forsaith  v.  Clark,  21  N.  H.  409  —  where, 
although  the  decision  was  after  the  statute,  the  will  was  proved  very- 
long  before. 

In  Loveacrcs  v.  Blight,  Cowp.  352,  Lord  Mansfield  said:  "  I  really 
believe  that  almost  every  case  determined  by  this  rule,  as  applied  to 
a  devise  of  lands  in  a  will,  has  defeated  the  real  intention  of  the  tes- 
tator; for  common  people,  and  even  others  who  have  some  knowl- 
edge of  the  law,  do  not  distinguish  between  a  bequest  of  personalty, 
and  a  devise  of  real  estate.  But,  as  they  know  when  they  give  a 
man  a  horse,  they  give  it  to  him  forever;  so  they  think  if  they  give 
a  house  or  land,  it  will  continue  to  be  the  sole  property  of  the  per- 
son to  whom  they  have  left  it.  Notwithstanding  this,  where  there 
are  no  words  of  limitation,  the  court  must  determine  in  the  case  of 
a  devise  affecting  real  estate,  that  the  devisee  has  only  an  estate  for 
life;  because  the  principle  is  fully  settled  and  established,  and  no 
conjecture  of  a  private  imagination  can  shake  a  rule  of  law. 

"  But  as  this  rule  of  law  has  the  effect  I  have  just  mentioned,  of 
defeating  the  intention  of  the  testator  in  almost  every  case  that 
occurs,  the  court  has  laid  hold  of  the  generality  of  other  expressions 
in  a  will,  where  any  such  can  be  found,  to  take  the  devise  out  of 
this  rule.  ...  In  general,  wherever  there  are  words  and 
expressions,  either  general  or  particular,  or  clauses  in  a  will,  which 
the  court  can  lay  hold  of  to  enlarge  the  estate  of  a  devise,  they  will  do 
so  to  effectuate  the  intention."  He  did  not  explain  by  what  author- 
ity the  court  has  laid  hold  of  the  generality  of  other  expressions  in 
a  will  to  take  the  devise  out  of  this  rule,  or  how  it  would  be  possible 
in  that  way  to  give  effect  to  the  intention  of  the  testator  without 
shaking  a  rule  of  law  by  the  conjecture  of  a  private  imagination, 
provided  it  is  a  rule  of  law  that  the  word  "  heirs  "  is  indispensable 
to  the  passing  of  a  fee.  Nor  did  he  do  what  would  have  been  more 
useful  still,  that  is  to  say,  point  out  the  reason  for  a  distinction  in 
this  respect  between  the  construction  of  a  will  and  a  deed. 
The  reason  for  not  applying  the  rule  to  wills  is  sensible  and 
easily  understood.  It  is,  as  Lord  Coke  expresses  it,  quod- 
ultima  voluntas  testatoris  est  primplenda  secundum  veram  intentionem 
suam.  Coke,  Litt.,  322  b.  But  this  shows  no  reason  for  the  dis- 
tinction. It  does  not  show  why  the  intention  of  the  maker  of  the 
instrument  is  any  more  sacred  in  one  case  than  in  the  other,  nor  by 
what  right  the  court  can  abrogate  the  rule  in  favor  of  one  class  of 

LAW  OF  PROP.   IN  LAND  —  32 


498      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

donees,  if  it  must  be  rigidly  enforced  against  the  other.  If  for  any 
reason,  however  mysterious,  a  fee  in  land  could  not  pass  without  the 
use  of  this  potent  word,  all  efforts  of  the  court  to  bring  about  such 
a  result  where  the  word  was  wanting,  whether  in  a  will  or  deed, 
must  have  failed.  But  in  the  case  of  wills  those  efforts  did  not  fail. 
What,  then,  became  of  the  feudal  rule?  It  yielded  to  reason.  It 
was  swept  away  by  the  monstrous  absurdity  and  injustice  which  its 
application  must  involve.  It  could  not  stand,  because  no  enlight- 
ened court  could  uphold  it,  and  in  so  doing  defeat  the  manifest 
intention  of  the  donor,  without  feeling  that  they  were  ministers  of 
arbitrary  oppression  and  wrong  rather  than  of  law.  For  obvious 
reasons  the  same  question  as  to  defeating  the  intention  of  the 
grantor  in  a  deed  seldom  comes  up.  But  when  it  does  arise,  how 
can  that  intention  be  defeated  without  involving  a  violation  of  com- 
mon right  and  common  sense,  equally  glaring  and  flagrant?  Where 
is  the  reason  for  upholding  the  rule  as  to  deeds,  and  rescinding  it 
as  to  wills?  By  what  right  can  the  courts  say  that  the  intention  of 
a  testator  plainly  written  in  his  will  shall  govern,  but  the  intention 
of  a  grantor  as  plainly  written  in  a  deed  of  bargain  and  sale  shall  be 
set  at  naught,  the  consideration  of  the  sale  be  disregarded,  and  the 
property  be  thrust  back  upon  the  grantor  or  his  heirs,  on  the  death 
of  the  grantee,  for  the  want  of  this  fuedal  word  inheritance? 

In  the  nature  of  things  the  word  is  no  more  necessary  to  the  valid 
conveyance  of  land  than  to  the  valid  conveyance  of  a  horse.  Its 
use  was  necessary  in  the  scheme  of  a  semi-barbarous  institution,  a 
vast  engine  of  slavery  and  oppression,  an  instrument  of  violence  and 
disorder,  which  had  no  better  security  for  its  continued  existence 
than  superiority  of  brute  force,  and  which  was  swept  away  upon  the 
dawn  of  a  better  civilization  more  than  five  hundred  years  ago. 
Why  is  its  use  still  required  in  one  class  of  instruments  and  not  in 
the  other,  when  both  have  the  same  object  in  view,  namely,  the 
conveyance  of  land? 

I  have  not  found  any  answer  to  this  inquiry.  The  legal  significa- 
tion and  effect  of  the  word  as  used  in  our  deeds  of  bargain  and  sale 
are  purely  technical.  Strictly  speaking,  there  is  no  one  in  exist- 
ence at  the  time  of  the  grant  to  answer  the  description.  Nemo  est 
hares  viventis.  Those  who  may  become  the  heirs  of  the  grantee  take 
not  the  slightest  present  interest  by  virtue  of  the  word.  The  con- 
ince  v.sts  the  absolute  and  unlimited  ownership  in  the  grantee; 
the  word  imposes  no  restraint  on  his  power  of  alienation.  Never- 
theless it  has  a  settled  and  well  understood  meaning  as  thus  used, 
and,  as  a  legal  term,  is  very  convenient  and  useful  to  show  that  the 
e  granted  is  a  fee.     It  could  not  now  be  safely  omitted  without 


I.  I.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  499 

using  some  other  form  of  expression  showing  with  legal  accuracy 
the  intention  and  contract  of  the  parties. 

Of  course  it  will  not  be  omitted  by  any  conveyancer  or  other  per- 
son who  knows  the  significance  it  has  acquired.  But  when  a  case 
arises  where  the  intention  of  the  grantor  to  convey  a  fee  simple  is 
clearly  shown  by  other  words  in  the  deed,  we  think  the  court  have 
no  power  to  say  a  fee  shall  not  pass  because  he  has  not,  in  addition, 
inserted  this  technical  word,  using  it  in  a  sense  entirely  distinct  and 
different  from  its  usual  and  common  import.  Our  conclusion  is, 
that  the  rule,  which  would  defeat  the  obvious  intention  and  destroy 
the  plainly  expressed  contract  of  the  parties  in  the  present  case,  is 
not  adapted  to  our  institutions  or  the  condition  of  things  in  this 
State;  that  it  never  became  part  of  the  law  of  the  State,  and,  there- 
fore, that  this  instrument  conveys  to  the  lessees  a  perpetual  right 
to  take  and  use  the  water  upon  the  terms  and  conditions  specified, 
which  right  may  pass  to  their  heirs  and  assigns  as  a  fee. 

A  decree  is  to  be  entered  in  accordance  with  these  views. 


(2.)  Incorporation    of   Words   of   Limitation   by    Reference  to  Another 

Instrument. 

LEMON  v.  GRAHAM. 

131  Pennsylvania  State,  447.  — 1889. 

Ejectment.  Plaintiff  was  nonsuited  below.  The  facts  appear  in 
the  opinion. 

Williams,  J.  — The  title  to  the  land  in  controversy  was,  in  1866, 
vested  in  James  Ramsey,  under  whom  both  parties  claim.  In 
August  of  that  year  he  made  an  assignment  to  his  son,  Allen  Ram- 
sey, which  was  written  on  the  back  of  the  deed  under  which  he 
acquired  title,  and  delivered  the  paper  on  which  the  deed  and  the 
assignment  were  written  to  his  son.  The  assignment  was  in  these 
words: 

"  I,  James  Ramsey,  do  hereby  assign  and  set  over  all  my  right, 
title,  claim,  interest,  property,  and  demand  whatsoever  in  and  to 
the  within  deed  unto  Allen  Ramsey,  for  value  received.  Witness 
my  hand  and  seal  this  3d  day  of  August,  1866. 

James  Ramsey.    [Seal.] 

"Attest:  George  Bish." 

Eighteen  years  later,  in  1884,  he  conveyed  the  same  land  by  deed 
to  his  daughter,  Elizabeth  Jane  Graham.     The  father  was  in  posses- 


500      ESTATES   AS   TO    QUANTITY   AND   QUALITY.       [PT.  IV.   CH.  I. 

sion  until  his  death.  Allen  Ramsey  died  before  his  father.  This 
action  was  brought  by  the  heirs  at  law  of  Allen.  The  defense 
alleges  that  Allen  took  only  a  life  estate  in  the  land,  under  the 
assignment  made  by  his  father  to  him,  and  that  on  his  death  his 
title  was  extinguished,  the  fee  having  passed  to  Mrs.  Graham  under 
the  deed  made  to  her  in  1884. 

Two  questions  were  raised  on  the  trial,  and  are  now  for  determi- 
nation. The  first  relates  to  the  construction  and  legal  effect  of  the 
assignment  to  Allen  Ramsey.  The  other  is  over  the  right  of  the 
plaintiffs  to  show  by  George  Bish,  the  scrivener  by  whom  the  assign- 
ment was  drawn,  and  the  subscribing  witness  to  its  execution,  what 
the  parties  intended  and  agreed  upon,  what  they  asked  him  to  put 
in  writing,  and  what  he  undertook  to  do  for  them.  The  learned 
judge  of  the  court  below  held  that  the  assignment  conveyed  only  a 
life  estate,  and  that  evidence  offered  to  show  that  a  fee-simple  was 
intended,  and  that  the  failure  of  the  scrivener  was  by  mistake  of  his 
own,  was  incompetent. 

We  do  not  doubt  the  general  rule  laid  down  by  the  learned  judge, 
that  the  word  "  heirs, v  or  its  equivalent,  is  necessary  in  a  deed  in 
order  to  vest  a  fee-simple  in  the  grantee.  The  rule  is  as  old  as  the 
common  law,  and,  as  applicable  to  a  formal  deed,  is  well  under- 
stood, and  constantly  applied.  It  is  the  invariable  practice  of  pro- 
fessional conveyancers  to  describe  the  estate  which  it  is  intended  to 
convey,  by  apt  words.  If  it  is  a  fee,  the  words  of  inheritance  are 
introduced.  If  it  is  for  the  life  of  the  grantee  or  of  another,  the 
character  and  duration  of  the  estate  are  clearly  set  forth.  Instru- 
ments having  no  apt  words  of  description  in  them  are  not  often  met 
with,  but  when  encountered  are  found,  like  the  one  before  us,  to  be 
the  work  of  men  who  have  no  professional  training,  and  no  knowl- 
edge of  the  principles  of  conveyancing.  They  are  almost  always 
intended  to  convey  a  fee-simple,  and  fail  to  do  so  because  of  the 
omission  of  the  necessary  technical  words,  the  importance  of  which 
was  unknown  to  the  scrivener  and  to  the  parties.  It  is  for  this 
reason  that  the  courts  have  relieved  against  the  mistakes  so  made, 
when  the  proofs  were  sufficient  to  justify  them  in  so  doing,  and  have 
applied  the  general  rule  only  to  such  cases  as  came  clearly  within 
its  operation.  Thus,  the  courts  both  in  England  and  in  this  coun- 
try have  held  that  the  word  "  heirs  "  was  not  necessary  to  pass  an 
absolute  estate  in  fee  when  there  was  a  gift  by  will,  but  that  the 
intent  to  vest  a  fee  may  be  gathered  from  the  will  as  a  whole.  Lit- 
tle's App.,  81  Pa.  190.  So  it  has  been  held  that  an  executory  con- 
tra- t  without  words  of  inheritance  will  pass  a  fee-simple  in  equity. 
f >      n  v.  Brown,  33   l'a.  247.      And  it  was  held  in  the  case  last  cited 


I.  i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  501 

that  the  effect  of  an  informal  instrument  transferring  an  interest  in 
real  estate  depends,  not  on  any  particular  words  or  phrases  found  in 
it,  but  on  the  intention  of  the  parties  as  collected  from  the  whole 
instrument.  This  case  was  followed  in  the  recent  case  of  Dreisbach 
v.  Serf  ass,  126  Pa.  32. 

But  the  effort  to  avoid  the  rigor  of  the  rule  where  its  application 
is  not  obligatory  began  long  ago.  Where  technical  words  are  sup- 
plied by  reference  to  another  instrument  which  contains  them,  the 
case  was  recognized  as  an  exception  as  early  as  the  days  of  Lord 
Coke;  and  this  exception  was  recognized  by  our  own  case  of  Lytle 
v.  Lytle,  10  W.  259,  and  followed.  The  rule  was  plainly  laid  down 
in  the  last  case  cited  that  a  fee  simple  may  be  created  in  Pennsyl- 
vania, by  deed  without  words  of  inheritance,  by  a  reference  to 
another  instrument  in  which  such  words  are  found,  and  it  was  made 
clear  that  such  was  the  rule  in  England  at  a  very  early  date.  The 
following  examples  are  from  Shepherd's  Touchstone.  A  convey- 
ance was  made  by  deed  in  which  the  grantor  recited  that  "  B.  hath 
enfeoffed  him  (the  grantor),  of  white  acre,  to  have  and  to  hold  to 
him  and  his  heirs,  .  .  .  and  that  as  fully  as  B.  has  given  white 
acre  to  him  and  his  heirs  he  doth  grant  the  same  to  C."  Here  the 
word  "  heirs  "  is  supplied  in  the  grant  to  C.  by  the  reference  to  the 
grant  from  B.,  and  C.  takes  a  fee-simple  without  the  appearance  of 
words  of  inheritance  in  the  grant  to  him.  Another  case  is  that  of  a 
grant  of  two  acres  of  land  "  to  have  and  to  hold,  the  one  acre  to  A. 
and  his  heirs,  and  the  other  acre  to  B.  in  forma  predicta."  Shep. 
Touch.  101.  Here  B.  takes  a  fee-simple  by  virtue  of  the  reference 
to  the  grant  to  A..,  in  which  words  of  inheritance  appear.  The 
reference  shows  the  intent  of  the  grantor,  and  is  held  to  import  the 
words  of  inheritance  into  the  grant  to  B. 

In  the  light  of  these  cases,  let  us  look  once  more  at  the  assign- 
ment before  us.  We  find  the  assignor  held  a  deed  in  fee-simple,  in 
the  usual  form,  made  in  1862  by  another  son,  John.  On  the  back 
of  this  deed  the  assignment  is  written.  It  refers  for  a  description 
of  the  estate  granted  to  the  terms  of  the  deed  upon  which  it  is 
indorsed,  and  professes  to  transfer  to  the  assignee  all  the  right, 
title,  interest,  property,  claim,  and  demand  of  the  assignor  "  in  and 
to  the  within  deed."  What  was  the  title  of  the  assignor?  That 
question  can  only  be  answered  by  an  examination  of  the  description 
of  it  in  the  body  of  the  deed ;  but,  whatever  it  was,  the  assignor 
undertakes  to  transfer  it  to  his  assignee.  Not  a  part  of  it;  not  a 
life  estate  carved  out  of  it,  but  "  all  the  right,  title,  interest,  prop- 
erty, claim,  and  demand  "  of  the  assignor.  Nothing  was  left.  He 
transferred  his  whole  estate,  as  vested  in  him  by  virtue  of  the  deed, 


502       ESTATES   AS   TO   QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

by  the  reference  to  its  terms  in  the  assignment.  He  said,  in  sub- 
stance and  in  legal  effect,  "  as  fully  as  the  within  deed  clothes  me 
with  the  title  to  the  land  described  in  if,  so  fully  and  completely  do 
I  transfer  the  same  land  to  my  son  Allen.  He  is  to  take  from  me 
the  title  which  I  took  from  my  grantor."  The  technical  words  that 
are  wanting  in  the  assignment  standing  by  itself,  are  thus  supplied 
by  the  reference  to  "  the  within  deed  "  for  a  description  of  the 
estate;  and  the  fee-simple  which  the  father  took  by  the  deed  from 
John  he  transfers  by  his  assignment  to  Allen.  This  is  what  was 
intended;  and  the  scrivener  wrought  better  than  he  knew  in  making 
his  reference  to  "  the  within  deed  "  for  a  description  of  the  "  right, 
title,  estate,  interest,  property,  claim  and  demand  "  of  the  assignor. 
If  Allen  bought  a  life  estate  only,  it  is  reasonable  to  suppose  that  he 
would  have  taken  possession;  but  he  left  his  father  in  possession, 
and  in  the  full  enjoyment  of  its  proceeds.  If  the  father  understood 
that  he  parted  with  a  life  estate  only,  and  retained  the  fee,  he  would 
naturally  keep  the  deed  under  which  he  acquired  title;  but  he 
indorsed  his  assignment  upon  that  deed,  and  delivered  it  so 
indorsed,  to  Allen.  We  are  satisfied,  therefore,  that  the  parties 
intended  just  what  our  construction  of  the  assignment  shows  they 
did,  viz.,  to  convey  the  fee-simple  to  Allen.  In  this  view  of  the 
case,  it  becomes  unnecessary  to  consider  the  other  question  at  any 
length. 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded. 


(3.)  In  the  Transfer  of  a  Fee  to  a  Trustee. 
WILCOX  z>.  WHEELER. 

47  New  Hampshire,  48S.  —  1867. 

Bill  in  equity  to  restrain  defendants  from  cutting  certain  water 
pipes. 

Bellows,  J. — This  cause  is  heard  upon  bill  and  answer.  The 
defendants  claim  under  William  Simpson,  alleging  that  by  his  deed 
to  Mr.  Britton  only  an  estate  for  life  was  granted.  The  substance 
of  that  deed  is,  that,  in  consideration  of  one  hundred  dollars  paid 
by  said  Britton,  agent  for  the  Proprietors  of  Orford  Bridge,  Simp- 
son conveys  to  him  for  the  use  of  that  corporation,  and  to  his 
assigns,  two  parcels  of  land,  one  being  described  as  a  road  four  rods 
wide  from  the  bridge  to  the  main  road,  and  the  other  apparently  for 
a  toll-house;  to  have  and  to  hold  the  same  to  said  Britton  in  trust,  as 
aforesaid,  and  to  his  assigns. 


I.   i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  503 

By  this  deed,  by  force  of  the  statute  of  uses,  the  title  vested  at 
once  in  the  corporation,  as  it  had  full  capacity  to  take;  and  nothing 
indicates  any  purpose  that  the  legal  estate  should  be  kept  on  foot 
in  Mr.  Britton.  The  conveyance  was  made  to  him,  probably, 
because  conveyances  directly  to  corporations  had  not  then  become 
quite  familiar.  Had  it  been  conveyed  to  the  corporation  directly, 
then,  as  a  corporation  aggregate  never  dies,  it  would  be  a  fee-simple 
without  words  of  succession  or  inheritance.  Had  it  been  a  sole 
corporation,  words  of  succession  would  have  been  necessary. 

This  general  doctrine  is  well  settled;  4  Greenl.  Crim.  Dig.  279; 
4  Kent's  Com.  7,  where  it  is  said  that  the  reason  why,  in  deeds  to 
corporations  aggregate,  the  word  heirs  or  successors  is  not  neces- 
sary, is,  "  because  in  judgment  of  law  a  corporation  never  dies,  and 
is  immortal  by  perpetual  succession."     So  is  Co.  Lit.  9,  6. 

Such  being  the  law  where  the  grant  is  directly  to  a  corporation 
aggregate,  it  would  seem  not  to  be  unreasonable  to  apply  the  same 
doctrine  to  a  grant  to  a  trustee  for  the  use  of  such  a  corporation, 
when  it  is  of  such  a  character  that  the  whole  title  at  once  vests  in 
the  corporation,  making  it  substantially  a  grant  to  the  corporation. 

Upon  this  point  the  law  is  well  established,  that  if  there  be  a  con- 
veyance to  a  trustee,  and  the  nature  of  the  trusts  is  such  as  to 
require  a  fee,  then  by  necessary  implication  the  trustee  will  take  an 
estate  of  inheritance,  although  there  be  no  words  of  limitation. 

In  the  case  of  devises  this  has  long  been  the  law,  and  even  where 
the  purposes  of  the  trust  might  probably  be  accomplished  without  a 
fee;  or,  in  other  words,  if  by  possibility  the  purposes  of  the  will 
might  not  be  answered  without  the  trustee  had  a  fee,  the  will  would 
be  so  construed.  Shaw  v.  Weigh,  2  Str.  798;  Willis  v.  Lucas,  1  P. 
Wms.  472;  Collins  Case,  6  Co.  16;  and  Ackland  v.  Ackland,  2  Vern. 
687 ;  Gibson  v.  Montfort,  1  Ves.  Sen.  485 ;  Oates  v.  Cooke,  3  Burr. 
1684.  So  the  intent  to  give  a  fee  would  be  inferred  from  the  fact, 
that,  by  possibility,  a  fee  might  be  necessary  to  effectuate  the  trusts, 
and  the  leaning  of  the  courts  was  very  strong  so  to  construe  a 
devise. 

The  same  rules  are  applied  to  grants,  and  it  was  so  distinctly  laid 
down  in  Cleveland  v.  Hallet,  6  Cush.  403,  by  Shaw,  C.  J.,  as  an 
exception  to  the  rule  requiring  the  use  of  the  word  heirs  as  well 
established  as  the  rule  itself,  viz. :  that  when  a  conveyance  is  in 
trust,  and  the  trusts  are  of  such  nature  that  they  do,  or  by  possibil- 
ity may,  require  a  legal  estate  in  the  trustee  beyond  that  of  his  own 
life,  then  without  words  of  limitation  in  the  conveyance  to  the 
trustee,  he  shall  take  a  fee. 

In   Newhall  v.  Wheeler,   7   Mass.   189-198,   it  was   held,  Parsons, 


504      ESTATES   AS   TO    QUANTITY    AND   QUALITY.       [PT.  IV.  CII.  I. 

C.  J.,  that  though  no  words  of  limitation  are  used,  the  estate  of  the 
trustee  shall  be  commensurate  with  that  of  the  cestui  que  trust. 

So  is  Stearns  v.  Palmer  6°  a/.,  10  Met.  32,  where  the  grant  was  in 
trust  for  the  use  of  "  the  inhabitants  of  the  first  parish  in  Spring- 
field, and  their  heirs,  forever,  for  a  burying  yard." 

So  is  Gould  cV°  al.  v.  Lamb  e°  al.,  11  Met.  84,  where  the  convey- 
ance is  to  A.  B.,  to  have,  etc.,  as  he  is  trustee  under  an  indenture 
tripartite,  which  showed  the  intention  to  be  to  give  more  than  a 
life  estate;  and  so  it  was  held  that  a  fee  passed  without  words  of 
limitation. 

So  in  Brooks  &f  al.  v.  Jones,  11  Met.  191,  which  was  a  mortgage 
to  W.,  treasurer  of  a  corporation,  to  have  and  to  hold,  etc.,  to  him, 
the  said  treasurer,  and  his  successors  in  office,  to  his  and  their  use 
and  behoof  forever,  the  condition  was  to  pay  a  sum  of  money  to  the 
treasurer  and  his  successors  in  office,  and  it  was  held  that  W.  took 
a  fee  in  trust  for  the  corporation,  although  the  word  heirs  was  not 
used,  but  the  intention  was  plain,  and  no  stress  was  put  upon  the 
term  forever. 

The  same  doctrine  is  laid  down  by  Chancellor  Kent,  in  Fisher  v. 
Fields,  10  Johns.  494,  505.      So  is  Villiers  v.   Villiers,  2  Atk.  72. 

In  Welch  v.  Allen  6°  al.,  21  Wend.  147,  it  is  held  that  where  lands 
are  granted  to  a  trustee  without  words  of  perpetuity,  he  will,  by 
implication  of  law,  take  a  fee,  if  such  estate  be  necessary  to  fulfil 
the  objects  of  the  trust. 

So  the  doctrine  of  Cleveland  v.  Hallett,  before  cited,  is  confirmed 
in  Attorney-General  v '.  Prop.  Federal  St.  Meeting  House,  3  Gra)',  1. 

The  conveyance  to  Glen,  Hall,  Shaw  &  al.,  for  themselves,  as  a 
committee  chosen  and  appointed  by  the  congregation  of  the  Pres- 
byterian Meeting  House  in  Long  Lane,  etc.,  to  have  and  to  hold  the 
land  in  their  said  capacity,  and  to  their  successors  forever,  but  to 
and  for  the  only  proper  use,  and  benefit,  and  behoof  of  the  said  con- 
gregation, forever,  and  for  no  other  use;  and  it  was  held  that  the 
trustees  took  a  fee  upon  the  principle  before  mentioned,  and  no 
stress  is  put  on  the  word  forever,  and  the  corporation  was  not 
incorporated. 

So  in  King  v.  Parker  6°  al.,  9  Cush.  78,  where  the  grant  was  to 
V>.,  "  in  trust  to  and  for  the  use  of  the  Free  Masons'  Lodge  in  Bos- 
inn,  known  by  the  name,  etc.,  to  their  only  proper  use,  benefit  and 
behoof  forever,"  it  was  held  that  this  proved  the  fee. 

The  question  then  is,  whether  this  conveyance  to  Mr.  Britton, 
agent  of  the  bridge  corporation,  to  be  held  for  the  corporation, 
p  ed  tin:  fee  without  words  of  limitation;  that  is,  whether  the 
intention  to  give  the  corporation  the  fee  can  be  gathered  from  the 


I.   i.]  FREEHOLDS    OF    INHERITANCE   OR   FEES.  505 

grant  Had  it  been  directly  to  the  corporation,  being  a  corporation 
aggregate,  the  fee  would  have  passed;  and  in  all  such  cases  where 
the  conveyance  is  through  a  trustee  to  hold  for  the  use  of  such 
corporation,  the  intention  to  make  it  perpetual  is  to  be  inferred, 
and  so  are  the  Massachusetts  cases  already  cited,  we  think. 

Here  the  grant  was  of  two  pieces  of  land,  for  a  road  and  toll- 
house, both  essential  to  the  use  of  the  bridge,  as  much  so  as  the 
land  upon  which  stands  the  Federal  street  church;  and  it  is  impos- 
sible to  suppose  that  it  was  intended  to  grant  an  estate  for  the  life 
of  Mr.  Britton  only,  which  might  have  ended  in  one  year.  Such 
being  the  case,  it  must  be  considered  that  the  fee  passed,  and  at 
once  vested  in  the  corporation. 

In  respect  to  some  of  the  Massachusetts  authorities,  which  hold 
that  where  the  purposes  of  the  trust  cannot  be  answered  without  a 
greater  estate  than  for  life,  then  by  implication  a  fee  will  pass,  it  is 
urged  by  defendant's  counsel  that  the  intention  to  give  a  greater 
estate  is  manifested  by  the  use  of  the  term  forever,  which  in  this 
case  is  wanting. 

It  is  obvious,  however,  that  this  term  is  not  one  of  limitation 
and  only  bears  upon  the  question  of  intention,  and  if  that  is  ascer- 
tained by  the  nature  of  the  grant,  or  the  language  used,  whatever  it 
may  be,  the  law  will  give  effect  to  that  intention,  and  in  this  case 
we  think  the  intention  to  grant  a  fee  is  very  clearly  to  be  inferred 
from  the  nature  of  the  grant  itself.     *     *     * 

Perpetual  injunction  decreed.1 


(4.)  In  the  Transfer  of  an  Equitable  Interest. 

FISHER  v.  FIELDS. 

10  Johnson  (N.  Y.),  495.  —  1812. 

Bill  in  equity  to  restrain  Fields  from  prosecuting  an  action  at 
law  in  ejectment  and  to  compel  him  to  convey  to  Fisher  the  lands 
in  dispute.  The  bill  was  dismissed  by  the  court  below.  Plaintiff 
appeals.     The  further  facts  appear  in  the  opinion. 

Kent,  Ch.  J.  —  The  appellants  claim  title  to  lot  No.  fifty-seven, 
in  Aurelius,  under  a  deed  from  Benjamin  Griffen,  the  soldier  who 
drew  the  lot,  and  in  whose  name  the  patent  issued.  This  deed  was 
made  on  the  27th  of  March,  1784,  and  was  drawn  on  the  back  of  the 


1  See  Cole  v.  Lake  Company,  54  N.  H.  242  (1874),  reported  supra,  p.  489,  which 
does  not  cite  or  discuss  this  case.  —  Ed. 


506      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

original  discharge,  and  though  no  consideration  was  expressed  in 
the  deed,  yet  the  appellants  have  averred  and  proved  a  valuable 
consideration  given.  The  respondent  claims  under  a  subsequent 
conveyance  from  the  same  soldier;  and  the  sole  question  is  whether 
the  appellants  are  entitled,  under  the  first  deed  to  the  relief  prayed 
for  by  their  bill. 

It  is  not  pretended  that  the  respondent  is  a  bona  fide  purchaser 
without  notice.  It  is  in  proof  that  he  purchased  with  a  knowledge 
of  the  assignment  to  Birch,  under  whom  the  appellants  claim;  but 
the  defense  is  that  the  soldier's  deed  to  Birch  was  not  sufficient,  in 
law  or  equity,  to  entitle  him  to  the  land,  or,  at  least,  to  any  greater 
interest  than  a  life  estate. 

The  Onondaga  commissioners  appear  to  have  thought  otherwise; 
for  they  awarded  that  the  equitable  title  was  in  the  appellants,  and 
that  the  respondent  held  in  trust  for  them.  After  a  careful  consid- 
eration of  the  case  I  am  of  the  same  opinion. 

When  the  soldier  assigned  over  his  right  Birch,  in  1784,  he  had 
no  legal  title.  He  had  only  an  equitable  claim  upon  the  state, 
founded  upon  the  concurrent  resolution  of  the  Legislature  of  March, 
1783.  It  was  not  requisite,  therefore,  that  he  should  make  use  of 
the  same  formal  and  technical  conveyance  that  would  have  been 
proper,  if  he  was  conveying  an  estate  in  fee.  It  was  only  an  assign- 
ment of  an  equitable  interest,  and  it  was  sufficient  if  he  used  words 
that  denoted  clearly  and  explicitly  his  intention.  The  deed  here 
was  on  the  back  of  his  discharge,  and  it  is  declared  that  Birch  was 
entitled  to  all  the  lands  that  he  was  entitled  to,  either  from  the 
state  or  continent,  for  his  services  as  a  soldier.  This  was  a  full 
declaration  of  trust.  No  person  could  possibly  mistake  its  mean- 
ing; and  there  is  no  just  pretense  that  it  was  not  fairly  procured, 
and  for  a  price  that  was,  at  that  day,  deemed  an  adequate  consid- 
eration. It  is  probable  that  a  large  portion  of  the  titles  to  the  mili- 
tary lands  were  originally  assigned  in  the  same  brief  manner.  It 
was  an  authority  to  the  assignee  to  receive  the  patent  to  his  own 
use;  and  if  the  law  had  not  afterwards  directed  the  letters  patent  to 
issue,  in  all  cases,  in  the  name  of  the  soldier,  this  authority  would 
no  doubt  have  been  deemed  sufficient  to  have  procured  the  patent  in 
the  name  of  Birch,  or  his  assignee.  The  issuing  of  the  patent  in 
the  name  of  the  soldier  did  not  invalidate  the  equitable  claim  of 
Birch;  for  the  soldier  took  it  as  trustee  to  the  party  to  whom  the 
equitable  interest  had  been  transferred. 

The  act  of  the  6th  of  April,  1790,  expressly  provided  that  "all 
grants,  bargains,  sales,  devises  and  other  dispositions  "  of  the  land 
made    by    the    soldier,    before    the    issuing   of  the    patent,    should 


I.  I.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  507 

be  deemed  valid.  It  also  declared  that  the  patent  should  have  a 
retrospective  effect,  and  that  the  land  should  be  deemed  to  have 
vested  in  the  patentee  and  his  heirs,  from  the  27th  of  March,  1783. 
The  act  of  the  5th  of  April,  1803,  went  still  further,  and  declared 
that  the  lands  should  be  deemed  to  have  been  vested  in  the  soldier 
at  the  time  of  his  death,  though  he  died  before  the  27th  of  March, 
1783.  These  statutes  were  made  not  to  divest,  but  to  confirm  and 
enlarge  the  interest  which  the  soldier  may  have  passed  before  the 
date  of  the  patent.  The  statutes  were  made  for  the  benefit  of  pur- 
chasers, and  to  render  their  titles  valid  in  a  court  of  law,  equally  as 
if  the  soldier  had  been  seized  in  fee  at  the  time  of  the  conveyance. 
And  courts  of  law,  when  any  such  conveyances  are  brought  before 
them,  are  to  give  them  the  same  operation  as  if  they  had  been  exe- 
cuted by  the  party  seized;  and  such  has  been  the  decision  of  the 
Supreme  Court. 

But  these  statutes  never  meant  to  weaken  or  defeat  any  equitable 
trust  which  may  have  been  created  by  any  deed  competent  to  raise 
such  a  trust,  though  incompetent  to  convey  the  fee  at  law.  The 
Court  of  Chancery  has  exclusive  cognizance  of  cases  of  trust,  and  is 
charged  with  the  duty  of  seeing  them  fulfilled,  and  in  doing  so  it 
acts  in  furtherance  of  the  liberal  provisions  and  intent  of  the  stat- 
utes. Suppose  that  Griffen,  instead  of  the  deed  in  question,  had 
executed  a  bond  to  Birch,  and  bound  himself,  by  the  consideration 
which  it  is  proved  he  received,  to  convey  that  interest  to  Birch,  or 
such  other  person  as  Birch  should  appoint,  would  not  equity  compel 
him  to  execute  that  trust?  Most  undoubtedly;  and  so  it  was 
decided  in  a  case  which  I  shall  presently  mention. 

There  never  was  a  greater  mistake,  as  I  apprehend,  than  the  sup- 
position that  this  transfer  of  the  soldier's  right  to  Birch  is  to  be 
tested  by  the  strict  technical  rules  of  a  conveyance  of  land  at  com- 
mon law,  and  that  Birch  did  not  take  the  whole  interest  of  the 
soldier,  because  the  word  heirs  was  not  inserted  in  the  assignment. 

If  Griffen,  at  the  time,  had  been  seized  in  fee  of  the  land,  as  an 
estate  at  law,  the  argument  would  have  had  weight.  But  surely 
that  formality  was  not  necessary  to  pass  a  mere  undefined  claim 
upon  the  government,  for  Griffen  had  nothing  else  to  convey  but  an 
interest  in  trust.  That  would  be  contrary  to  all  the  rules  relative 
to  the  creation  or  assignment  of  a  trust.  The  act  of  28th  February, 
1789,  on  this  very  subject,  is  sufficient  to  justify  a  contrary  conclu- 
sion; for  that  act  directs  the  commissioners  of  the  land  office  to 
require  from  each  soldier  entitled  to  bounty  lands,  an  assignment  of 
his  claim  to  lands  under  any  act  of  congress,  to  the  surveyor-gen- 
eral, for  the  use  of  the  people  of  this  State.     There  is  no  particular 


508      ESTATES   AS   TO    QUANTITY   AND    QUALITY      [PT.  IV.   CH.   I. 

form  of  an  assignment  given,  nor  anything  intimated  about  a  con- 
veyance with  the  usual  and  apt  words  of  inheritance.  No  doubt 
such  an  assignment,  as  the  one  in  this  case,  would  have  been  deemed 
sufficient  to  vest  this  State  with  the  interest  in  the  soldier's  claim 
upon  congress,  and  I  am  persuaded,  that  if  the  facts  were  investi- 
gated, no  more  formal  assignments  were  taken. 

It  is  a  well-settled  principal  that  no  particular  form  of  words  is 
requisite  to  create  a  trust.  The  intent  is  what  the  courts  look  to. 
2  Fonb.  36,  note;  3  Ves.  Jr.  9.  A  trustee  or  cestui  que  trust  will 
take  a  fee  without  the  word  heirs,  when  a  less  estate  will  not  be 
sufficient  to  satisfy  the  purposes  of  the  trust.  This  has  been  fre- 
quently ruled  in  chancery,  and  the  Court  of  K.  B.,  during  the  time 
of  Lord  Mansfield,  made  the  same  decision  at  law.  2  Atk.  72,  578; 
1  Ves.  491;  Amb.  93;  3  Burr.  1684.  In  Moorecroft  v.  Dowding,  2 
P.  AYms.  314,  A.  purchased  an  estate  in  the  name  of  a  third  person, 
who  gave  a  bond  to  convey  it  to  such  person  and  uses  as  A.  should 
appoint;  and  the  lord  chancellor  held  that  the  third  person  was  a 
trustee  to  A.,  who  had,  in  equity,  a  specific  right  to  the  land,  and 
he  was  decreed  to  convey.  Here,  a  bond  was  held  sufficient  to 
create  a  trust  in  fee.  But  what  puts  this  point  beyond  all  doubt,  is 
the  doctrine  of  the  common  law  on  the  subject  of  uses  and  trusts. 
Before  the  statute  of  uses,  if  a  man  had  bargained  and  sold  his  land 
for  a  valuable  consideration  without  inserting  the  word  heirs,  the 
Court  of  Chancery  would  have  decreed  an  execution  of  the  use  in 
fee,  because  the  use  was  merely  in  trust  and  confidence,  and  because 
this  was  according  to  the  conscience  and  intent  of  the  parties. 
But,  after  the  statute  of  27  Hen.  VIII.,  as  the  uses  were  transferred 
and  made  a  legal  estate,  a  different  rule  took  place.  1  Co.  87  b., 
100  b.  A  trust  is  merely  what  a  use  was  before  the  statute  of  uses. 
It  is  an  interest  resting  in  conscience  and  equity,  and  the  same  rules 
apply  to  trusts  in  chancery  now  which  were  formally  applied  to  uses. 
And,  in  exercising  its  jurisdiction  over  executory  trusts,  the  Court 
of  Chancery  is  not  bound  by  the  technical  rules  of  law,  but  takes  a 
wider  range  in  favor  of  the  intent  of  the  party.  This  principle 
seems  to  be  well  established,  and  it  has  been  ably  vindicated  by 
Fonblanque.     Vol.  1.  396  note,  400  note;  vol.  2,  18. 

To  apply,  then,  this  doctrine  to  the  present  case;  the  soldier, 
after  the  assignment  of  his  claim  upon  the  State  to  Birch,  and  after 
the  issuing  of  the  patent  in  his  name,  became  seized  in  trust  for 
Birch,  or  those  to  whom  Birch  had  assigned  his  interest;  and 
instead  of  dismissing  tin-  appellant's  bill,  the  Court  of  Chancery 
oughl  t<>  hav<-  decreed  an  adequate  legal  conveyance  to  be  made  by 
the  defendant  to   the   appellants.      The   defendant   purchased    of 


I.  i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  509 

Griffen  knowing  of  the  assignment,  and,  therefore,  he  was  a  pur- 
chaser chargeable  with  the  trust,  and  as  much  bound  to  execute  the 
trust  as  the  soldier  himself.  The  clearest  justice,  and  clearest  prin- 
ciples of  a  court  of  equity  are  in  favor  of  such  a  decree. 

A  good  deal  was  said,  upon  the  argument  about  the  statute  of 
frauds,  but  it  appears  to  me  that  the  objection  is  wholly  inappli- 
cable. This  is  not  a  case  of  an  agreement  about  the  sale  of  lands;  it 
is  a  complete  assignment  by  deed  of  an  equitable  claim;  and  the 
1 2th  section  of  the  act  (Sess.  10,  c.  44),  says,  that  all  declarations 
or  creations  of  trust,  or  confidence,  of  any  lands,  shall  be  proved  by 
some  writing,  signed  by  the  party  enabled  to  declare  the  trust. 

Judgment  of  reversal. 


(5.)  In  the  Transfer  of  a  Fee  to  a  Corporation. 

Aldis,  J.    in  CONGREGATIONAL  SOCIETY  OF  HALIFAX  v. 

STARK. 

34  Vermont,  243,  249.  —  1861. 

It  is  true  as  claimed  by  the  counsel  for  the  plaintiffs,  that  a  deed 
to  a  corporation  aggregate  will  convey  a  fee  simple  though  the  word 
"  successor  "  is  not  used  in  the  deed.  As  such  a  corporation  never 
dies,  it  is  immaterial  whether  such  a  deed  is  construed  as  granting 
to  them  an  estate  for  life  or  a  fee,  for  in  their  case  the  one  is  the 
same  as  the  other.  Hence  the  deed  of  McCrillis  to  the  Halifax 
society  vested  in  them  in  fee  simple  the  lands  conveyed. 

It  is  further  claimed  as  a  necessary  consequence  that  the  clause 
in  the  habendum  of  the  deed  is  repugnant  to  the  premises,  and 
therefore  void.  The  habendum  is  in  these  words:  "  To  have  and 
to  hold  the  premises  during  the  time  the  said  society  or  their  heirs 
shall  meet  on  said  land  for  public  worship,  or  have  a  meeting-house 
standing  on  said  land  and  appropriate  the  use  of  the  same  to  the 
congregational  or  Presbyterian  public  worship." 

It  is  the  proper  office  of  the  habendum  to  determine  what  estate 
or  interest  is  granted  by  the  deed,  and  to  limit,  qualify  or  explain 
the  words  used  in  the  granting  part  of  the  deed.  Where  the  estate 
or  interest  is  set  forth  in  the  premises  the  habendum  cannot  by  the 
use  of  words  repugnant  to  such  estate  defeat  it.  Where,  therefore, 
the  habendum  is  contradictory  to  the  premises,  the  habendum  is 
void,  and  the  words  in  the  premises  stand.  Co.  Litt.  21;  4  Cruise's 
Dig-)  §  76,  P-  273;  Goodtitle  v.  Gibbs,  5  B.  and  C.  709;  2  Bla.  Com. 
298;   Timmis  v.  Steele,  4  Ad.  and  Ell.  664  (45  E.  C.  L.  664). 


510      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CII.  I. 

But  where  the  habendum  is  not  so  contradictory  to  the  premises, 
but  only  limits,  explains  or  qualifies  the  words  there  used,  it  per- 
forms its  proper  office.  It  may  lessen,  enlarge,  limit  and  qualify 
the  use  of  the  land  conveyed  so  long  as  it  does  not  defeat  the  estate 
granted. 

Here  the  deed  in  the  premises  does  not  describe  the  estate  or 
interest  conveyed,  but  only  the  land  by  its  name  and  boundaries. 
A  deed  to  a  corporation  would  describe  them  in  the  same  way  what- 
ever was  the  estate  conveyed,  whether  in  fee  or  for  life.  Hence  in 
such  a  deed  the  description  of  the  estate  or  interest  conveyed  would 
naturally  be,  and  ought  to  be,  in  the  habendum.  A  deed  to  a 
natural  person  and  his  heirs  necessarily  causes  a  fee  and  not  an 
estate  for  life  —  not  so  with  a  corporation.  Hence  this  deed  to 
them  in  the  premises  describes  the  land  and  not  the  estate  or  dura- 
tion of  the  interest  conveyed.  The  word  successors  is  not  used, 
still  without  it  they  may  take  a  fee,  and  would  if  there  were  no  limi- 
tation or  description  of  a  less  estate  in  the  following  parts  of  the 
deed.  But  in  a  deed  to  a  natural  person  the  word  "  heirs  "  would 
carry  a  fee,  and  its  absence  would  show  a  less  estate  for  life.  The 
habendum  proceeds  to  explain  the  use  which  the  grantee  is  to  have 
of  the  land,  and  limit  its  extent  and  duration.  It  may  be  a  fee 
simple,  the  use  may  last  forever  if  the  grantees  see  fit  to  occupy  it 
for  the  purpose  for  which  it  is  conveyed.  There  is  no  repugnancy 
between  the  premises  and  the  habendum. 

We  do  not  deem  it  very  material  to  decide  whether  the  clause  in 
the  habendum  shall  be  held  to  be  a  condition  or  a  limitation. 
The  clause  in  question  well  illustrates  what  is  said  in  Sheppard's 
Touchstone,  p.  121,  that,  "conditions  at  all  times  have  in  their 
drawing  so  much  affinity  with  limitations  that  it  is  hard  to  discern 
and  distinguish  them."  But  the  legal  effect  of  this  language  clearly 
is,  that  when  the  grantees  cease  to  meet  on  said  land  for  public 
worship,  and  fail  to  have  a  meeting-house  on  the  land  and  to  appro- 
priate its  use  to  Congregational  or  Presbyterian  public  worship,  then 
their  title  ceases,  and  the  grantor  or  his  heirs  may  re-enter  and  hold 
the  land. 

We  think,  therefore,  that  the  county  court  was  right  in  holding 
that  the  grantor  and  his  heirs  had  a  reversionary  interest  in  the 
land,  and  that  when  the  grantees  ceased  to  comply  with  the  terms 
and  conditions  upon  which  the  land  was  granted  to  them  and  to  use 
it  as  specified  in  the  deed,  then  their  right  to  the  land  expired,  and 
the  reversionary  interest  of  the  grantees  came  into  operation  as  a 
present  and  absolute  estate  in  fee. 


I.  I.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  511 

WILCOX  v.  WHEELER. 

47  New  Hampshire,  488.  —  1867. 
[Reported  herein  at  p.  502.] 


NICOLL  v.  THE  NEW  YORK  AND  ERIE  RAILROAD  CO. 
12  New  York,  121.  —  1854. 
[Reported  herein  at  p.  527.]  ' 


(6.)  In  Partition  Deeds  Between  Joint  Tenants  and  Tenants  in  Common. 

Scott,  J.,  in  RECTOR  v.  WAUGH. 

17  Missouri,  13.  —  1852. 

A  number  of  proprietors  of  a  town,  supposing  that  they  have  a 
title  to  the  land  on  which  the  town  is  laid  off,  make  an  equal  parti- 
tion of  the  lots  amongst  themselves,  and  mutually  convey  with  war- 
ranty. The  entire  title  to  the  land  which  is  the  subject  of  partition 
afterwards  fails.     *     *     * 

After  the  failure  of  the  first  title,  one  or  more  of  the  proprietors 
acquire  a  new  and  distinct  title  to  the  land  on  which  the  town  was 
laid  off,  and  a  former  proprietor,  who  has  neither  contributed  nor 
offered  to  contribute  anything  towards  the  acquisition  of  the  new 
title,  lays  claim  to  all  the  lots  conveyed  to  him  by  the  deed  of  par- 
tition.    *     *     * 

In  the  deed  on  which  this  action  is  founded,  there  are  no  words  of 
perpetuity  used  in  conveying  the  estate  to  Stephen  Rector.  Accord- 
ing to  the  law  in  force  at  that  day,  the  .words  employed  only  con- 
veyed a  life  estate,  and  the  duration  of  the  warranty  is  only 
co-extensive  with  the  estate  to  which  it  was  annexed.  The  war- 
ranty, then,  was  extinct  on  the  death  of  Stephen  Rector.  In  4 
Kent,  5,  it  is  said,  the  word  "  heirs  "  is  necessary  at  common  law  to 
create,  by  deed,  an  estate  in  fee  simple.  Further  on,  he  says,  that 
this  rule  does  not  apply  to  a  partition  between  joint  tenants,  copar- 
ceners and  tenants  in  common,  nor  to  releases  of  right  to  land,  by 
way  of  discharging  or  passing  the  right,  by  one  joint  tenant  or 
coparcener  to  another.  In  taking  a  distinct  interest  in  this  separate 
parcel   of   the  land,  the  releasee  takes  the  like  estate   in  quantity, 


1  Read  in  this  connection  pp.  527-529  only.  —  Ed. 


512      ESTATES   AS    TO    QUANTITY    AND    QUALITY.       [PT.  IV.  CH.  I. 

which  he  had  before  in  common.  This  is  a  question  in  which  the 
matter  of  intent  has  nothing  to  do.  The  law  has  appropriated  a 
certain  word,  by  which  an  estate  in  fee  simple  can  only  be  created 
by  deed.  If  that  word  is  omitted,  however  clear  and  manifest  the 
intent  may  be,  an  estate  in  fee  will  not  pass.  It  is  conceded  that, 
as  between  joint  tenants  and  coparceners,  a  fee  may  pass  by  a 
release  without  the  word  heirs,  but  it  is  apprehended  that  one  ten- 
ant in  common  cannot  release  to  another.  A  deed  intended  as  a 
release  between  tenants  in  common,  although  it  cannot  have  that 
effect,  may  yet  operate  as  some  other  kind  of  conveyance;  but  to 
make  it  effectual  as  such  to  pass  a  fee,  proper  words  of  limitations 
must  be  employed.  Cruise  says,  one  tenant  in  common  cannot 
release  to  his  companion,  because  they  have  distinct  freeholds,  but 
they  must  pass  their  estates  by  feoffment.  Vol.  4,  tit.  32,  ch.  6,  § 
25.  So  he  says,  if  one  coparcener  or  joint  tenant  releases  all  his 
right  to  another,  it  will  pass  a  fee  without  the  word  heirs.  lb.,  ch. 
21,  §  7.  Lomax  says  that  partition  between  tenants  in  common  who 
having  several  and  distinct  freeholds,  might  have  conveyed  to  each 
other  by  feoffment,  might,  at  common  law,  have  been  effected  by 
livery  of  seisin.  The  adjustment  between  them  in  severalty  of  the 
estate,  derived  to  them  in  common  by  distinct  titles,  could  only  be 
effectuated  by  a  conveyance,  accompanied  by  that  notoriety  indispens- 
able to  all  conveyances  at  common  law.  2  Vol.  96.  So,  again,  one 
tenant  in  common  cannot  release  to  his  companion,  because  they 
have  distinct  freeholds;  but  they  must  pass  their  estates  by  feoff- 
ment, lb.  98.  Preston  on  Abstracts  says,  when  several  persons 
are  tenants  in  common,  the  title  to  each  share  is  to  be  carried  on 
precisely  in  the  same  manner  as  if  the  title  to  that  share  was  a  title 
to  a  distinct  farm.  3  Vol.  58.  Hilliard  says,  joint  tenants  and 
coparceners  may  release  to  each  other.  In  a  release  of  this  kind,  a 
fee  will  pass  without  words  of  limitation.  The  releasee  is  deemed 
in  law  to  hold,  not  by  the  release,  but  by  the  original  limitation  to 
all  the  parties.  The  release  is  not  an  alienation,  but  a  mere  dis- 
charge of  the  claims  of  one  to  the  other.  Hence,  a  fee  arises  out  of 
the  original  conveyance.  Tenants  in  common,  having  distinct  free- 
holds, cannot  release  to  each  other.  2  Vol.  300,  301.  Bacon  says, 
if  there  be  two  joint  tenants,  and  one  release  to  the  other,  this 
passeth  a  fee  without  the  word  "  heirs,"  because  it  refers  to  the 
whole  fee,  which  they  jointly  took  and  are  possessed  of  by  force  of 
the  first  conveyance.  But  tenants  in  common  cannot  release  to 
1  a<  li  other,  for  a  release  supposeth  the  party  to  have  the  thing  in 
demand;  but  tenants  in  common  have  several  distinct  freeholds, 
which  they  cannot  transfer,  otherwise  than  as  persons  who  are  sole 


I.  I.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  5  1 3 

seised.  4  Vol.  455.  The  books  may  be  traced  to  the  earliest 
periods,  and  it  will  be  found,  that  no  author  has  maintained  that 
one  tenant  in  common  can  convey  to  another,  in  any  other  way  or 
by  a  conveyance  whose  operation  is  different  from  those  used  by 
feoffers,  between  whom  no  such  relationship  exists.  It  follows  from 
this  that,  however  conveyances  between  tenants  in  common  may 
operate,  and  they  cannot  operate  by  way  of  release,  they  must  con- 
tain words  of  perpetuity  to  pass  a  fee. 


(7.)  Effect  if  the  Words  of  Inheritance  be  in  the  Covenants  Only. 

ADAMS  v.  ROSS. 
30  New  Jersey  Law,  505.  —  i860. 
[Reported  herein  at  p.  483.] 


b.  Inter  vivos  —  under  modern  statutes. 

(1)  Some  of  these  statutes  declare  that  the  word  "  heirs  "  shall 
not  be  necessary  in  order  to  create  or  to  convey  a  fee,  but  leave  the 
estate  created  in  the  particular  case  to  be  determined  by  construc- 
tion without  any  guiding  rule  of  presumption. 

(2)  Other  statutes  provide  that  a  grant  of  real  property  shall  pass 
all  the  estate  or  interest  of  the  grantor  unless  the  intent  to  pass  a 
less  estate  or  interest  shall  appear  by  the  express  terms  of  the  grant 
or  by  necessary  implication  therefrom.1 

c.  By  devise  under  the  ancient  "  statute  of  wills." 
JACKSON  ex  dem.  WELLS  v.  WELLS. 

9  Johnson  (N.  Y.),  222.  —  1812. 

Ejectment.  A  verdict  was  taken  for  plaintiff,  subject  to  the 
opinion  of  this  court: 

Per  Curiam.  —  Upon  this  will  it  is  clear,  upon  the  established 
principles  of  construction,  that  the  defendant's  father  took  only  an 
estate  for  life.  The  words  of  the  will  are,  "  I  give  and  bequeath 
unto  my  eldest  son,  Daniel  Wells,  all  that  part  of  a  lot  of  land  that 
I  now  live  on  Xnorthward  of  the  north  road  and  also  three  lots  on  the 
broad  meadou>~\ . ' ' 

1  N.  Y.  R.  P.  L.  §§  205,  210.  —  Ed. 

LAW  OF  PROP.  IN  LAND  —  33 


514      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

Here  are  no  words  of  limitation  or  perpetuity,  though  it  appears, 
from  other  parts  of  the  will,  that  the  testator  understood  their  force 
and  effect,  and  knew  how  to  use  them;  nor  is  there  a  single  word  or 
expression,  which  denotes  anything  more  than  a  description  of  the 
land  devised.  There  is  nothing  which  alludes  to  the  quantity  of 
interest  which  the  testator  had  in  the  land  It  is  a  mere  designa- 
tion of  its  local  situation,  and  to  give  this  devise  the  effect  of  a  fee 
would  overset  a  volume  of  adjudged  cases,  and  throw  the  law  of 
devises  into  inextricable  confusion  and  uncertainty.  The  cases  of 
Dennx.  Gaskin,  Cowp.  657;  Right  v.  Sidebotham,  Doug.  759;  Doe  v. 
Wright,  8  Term  Rep.  64,  and  Doe  v.  Child  and  Wife,  4  Bos.  &  Pull. 
335,  may  be  cited  out  of  an  almost  endless  series  of  authorities,  as 
very  much  in  point,  and  perfectly  decisive. 

The  next  question  is,  whether  the  remainder  of  the  testator's 
interest  in  the  premises,  after  the  termination  of  the  life  estate,  was 
not  devised  to  the  lessor  of  the  plaintiff.  He  gives  to  the  lessor,  in 
fee,  "  all  the  rest  of  his  estate,  both  movable  and  immovable,  of 
every  kind  not  disposed  of,"  and  then  charges  it  with  some  debts 
and  legacies,  and  in  default  of  his  paying  the  same,  the  testator 
directs  that  so  much  of  the  estate  so  devised  to  him,  should  be  sold, 
as  should  be  requisite  to  pay  the  debts  and  legacies.  This  point  is 
as  clear  as  the  other.  All  the  rest  of  his  estate,  not  disposed  of,  is 
a  general,  sweeping  clause,  that  must  most  obviously  embrace  the 
interest  in  question.  After  this  clause,  there  could  be  no  dying 
intestate  as  to  any  part  of  the  estate.  The  authority  to  the  execu- 
tors to  sell  any  part  of  his  estate  on  nonpayment  of  the  debts  and 
legacies,  cannot  be  considered  as  a  restraint  or  qualification  of  the 
residuary  clause,  so  as  to  detach  the  interest  in  question  from  it; 
for  an  interest  in  remainder  is  capable  of  being  sold  no  less  than  a 
vested  interest. 

Judgment  for  plaintiff. 


MORRISON  v.  SEMPLE. 
6  Binney  (Pa.),  94.  —  1813. 

Ejectment  brought  by  the  guardian  of  Edward  and  Sarah  Semple 
against  Morrison  and  others. 

One  Samuel  Semple  left  a  last  will  and  testament  by  which  he  gave 

all  his  "  real  and  personal  property"  to  Steele  Semple,  under  whom 

I. nits   below  (Morrison   and   others)  claim        Plaintiffs    below 

<  [aim  the  land  in  question  as  heirs  of  Samuel  Semple,  asserting  that 


I.  i.J       FREEHOLDS  OF  INHERITANCE  OR  FEES.         515 

Steele  Semple  (who  is  now  dead)  took  only  a  life  estate   therein. 
The  judgment  below  was  for  the  Semples.      Morrison  appeals. 

Tilghman,  C.  J. — Judgment  was  entered  in  this  case,  in  the 
Court  of  Common  Pleas,  without  argument  and  by  consent,  in  order 
that  it  might  be  brought  up  for  the  opinion  of  this  court.  The  ques- 
tion is,  whether  an  estate  for  life  or  in  fee  passed  to  Steele  Semple 
by  the  will  of  Samuel  Semple.  The  will  is  very  short  and  in  the 
following  terms:  (Here  the  Chief  Justice  read  the  will.)  The 
counsel  for  the  defendant  in  error  placed  this  case  in  as  strong  a 
light  as  it  would  bear,  but  I  have  never  entertained  a  doubt  on  the 
subject.  In  whatever  point  of  view  it  is  considered,  I  perceive  a 
plain  intention  with  apt  words  to  pass  a  fee  simple.  Here  is  a  testa- 
tor with  an  only  child  (a  daughter),  who  had  a  husband  and  two 
children.  He  makes  no  mention  either  of  child  or  grandchild,  but 
speaking  of  his  son-in-law  in  the  most  affectionate  manner,  he  gives 
him  the  whole  of  his  real  and  personal  property,  and  appoints  him  his 
sole  executor.  What  can  be  concluded  from  this,  but  that  the  testa- 
tor placing  unbounded  confidence  in  the  husband  intended  to  put 
every  thing  in  his  power.  It  is  inconceivable  that  with  any  other 
intent,  he  should  have  observed  a  profound  silence  with  respect  to 
every  other  human  being.  It  is  a  singular  instance  of  confidence, 
but  does  not  prove  that  the  testator  had  no  affection  for  his  daughter 
or  her  issue.  It  proves  that  he  was  convinced  of  the  honor  and 
integrity  of  his  son-in-law,  and  to  an  honorable  and  upright  mind  no 
obligation  could  be  stronger  than  that  which  this  will  imposed. 
What  is  its  language?  "  I  place  every  thing  that  is  dear  to  me  in 
your  hands.  The  person  and  the  fortune  of  my  child  are  confided 
to  you.  I  know  that  you  will  prove  worthy  of  the  trust."  But  it  is 
said  that  intention  alone  is  not  sufficient.  The  heir  is  not  to  be  dis- 
inherited without  words  sufficient  to  pass  the  estate  to  some  other 
person.  It  is  true  that  we  are  not  permitted  to  guess  at  the  inten- 
tion; it  must  be  ascertained  from  the  words  of  the  will.  But  if  it 
can  be  so  ascertained  it  shall  be  carried  into  effect.  No  technical 
words  are  necessary  .to  pass  a  fee  simple.  Any  expressions  which 
show  an  intent  to  give  an  absolute  estate  are  sufficient.  A  devise 
of  land  to  one  forever,  or  "  to  dispose  of  at  his  will  and  pleasure," 
is  a  fee;  because  there  is  a  manifest  intent  to  give  a  fee.  So  a  devise 
of  one's  estate,  or  of  all  one's  right  or  interest  in  land  passes  a  fee 
for  the  same  reason.  The  rule  is  this:  Words  which  only  describe 
the  object  devised  give  no  more  than  an  estate  for  life,  but  words 
which  comprehend  the  quantum  of  the  estate,  pass  the  fee.  And  this 
rule  is  not  founded  on  any  artificial  principle,  but  on  the  plain  ground 


$l6      ESTATES   AS   TO    QUANTITY  AND    QUALITY.       [PT.   IV.  CH.  I. 

of  common  sense  and  fair  construction.  When  a  man  gives  all  his 
estate,  it  is  as  much  as  to  say,  all  the  interest  that  he  has  in  the  sub- 
ject devised.  In  the  present  instance  the  testator  designates  no 
particular  object,  but  gives  in  general,  all  his  real  and  personal 
property.  I  can  conceive  no  expressions  more  comprehensive. 
The  giving  of  the  real  and  personal  property  by  the  same  words, 
shows  an  intent  to  give  the  same  interest  in  both,  that  is  to  say,  an 
absolute  interest,  for  no  man  ever  doubted  that  those  expressions 
give  an  absolute  interest  in  personal  property.  Property  signifies 
the  right  or  interest  which  one  has  in  land  or  chattels.  In  this  sense 
it  is  used  by  the  learned  and  unlearned,  by  men  of  all  ranks  and  con- 
ditions. We  find  it  so  defined  in  dictionaries,  and  so  understood  by 
the  best  authors.  The  possession  of  land  may  be  in  one  man,  the 
property  in  another.  There  is  a  right  of  possession,  and  a  right  of 
property.  Every  scrivener  who  draws  a  conveyance,  mentions  not 
only  the  land  itself,  but  also  "  the  right,  title,  interest  and  property 
of  the  grantor  of,  in,  and  to  the  same."  In  common  conversation 
we  say  that  such  a  house  or  piece  of  land  is  the  property  of  such  a 
person.  When,  therefore,  a  man  devises  all  his  real  property,  he 
devises  all  the  right  and  interest  which  he  has  in  any  lands  or  real 
estate.  If  he  has  a  right  in  fee  simple  a  fee  passes,  otherwise  the 
will  is  not  complied  with;  for  if  the  devisee  takes  but  an  estate  for 
life,  he  does  not  take  all  but  only  part  of  the  devisor's  property. 
Many  cases  were  cited  on  the  argument.  I  think  it  unnecessary  to 
take  particular  notice  of  any  of  them.  It  is  a  principle  undeniable, 
that  when  the  words  of  a  will  indicate  an  intention  to  pass  the  whole 
interest  of  the  devisor,  the  devisee  shall  take  a  fee.  Being  clearly 
of  opinion  that  such  an  intention  is  indicated  by  the  expressions  of 
this  will,  it  follows  that  Steele  Semple  took  an  estate  in  fee  in  all 
the  real  estate  of  Samuel  Semple.  The  judgment  of  the  Court  of 
Common  Pleas  must,  therefore,  be  reversed,  and  judgment  entered 
for  the  plaintiffs  in  error. 


WHEATON  v.  ANDRESS. 

23  Wkndell  (N.  Y.),  452.  —  1840. 

Ejectment  by  the  heirs-at-law  of  Prudence  Taplin  to  recover  of 
defendant  certain  lands  devised  to  her  by  the  will  of  her  husband. 
I  defendants  allege  that  Prudence  took  only  a  life  estate  undersaid  will. 
Verdict  below  for  plaintiffs,  subject  to  the  opinion  of  this  court. 

P,y  THE  Court,  Cowen,  J.  — This  ejectment  seems  to  have  been 
brought    on    the    authority    of  Loveacres   ex   Jem.   Mudge    v.  Blight, 


I.  I.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  517 

Cowp.  352,  decided  in  1775.  The  introductory  and  devising  clauses 
in  that  case  cannot,  as  the  counsel  for  both  parties  in  the  principal 
case  seem  to  agree,  be  distinguished  in  their  import  from  the  words 
used  in  the  will  before  us;  and  they  were  held  to  carry  a  fee.  But 
it  is  very  plain,  as  the  counsel  for  the  defendant  contends,  that  this 
was  not  in  virtue  of  their  own  proper  force.  They  were  helped  by 
various  other  parts  of  the. will;  among  others,  there  was  a  charge  on 
the  land  incompatible  with  the  idea  of  a  mere  estate  for  life.  That 
is  mentioned  and  much  relied  on  by  Lord  Mansfield;  and,  as  is  well 
known  to  the  profession,  has  often  been  considered  of  itself  decisive 
in  enlarging  the  estate  to  a  fee.  The  will  began,  "  as  touching  my 
worldly  estate,"  etc.  Then,  after  some  intermediate  provisions,  "  I 
give  unto  John  and  Robert  Mudge  all  and  singular  my  lands  and 
messuages,  by  them  freely  to  be  possessed  and  enjoyed  alike."  It 
is  true,  Lord  Mansfield  relied  on  the  introductory  words,  as  mani- 
festing an  intent  in  the  testator  to  dispose  of  all  his  worldly  interest; 
and  with  that  he  joined  the  words  freely  to  be  possessed,  etc.  And 
he  agreed  that,  independent  of  these  and  other  circumstances  which 
he  took  up  and  connected  together  from  the  whole  will,  there  were 
no  words  of  limitation,  such  as  heirs,  or  what  were  tantamount. 
Introductory  words  of  much  stronger  import  have  always  been 
denied  as  sufficient  of  themselves,  though  they  may  help  other 
words.  Fid.  Ram.  on  Wills,  65,  66.  And  no  case  holds  that  simply 
connected  with  the  words  freely  to  be  enjoyed,  etc.,  the  whole  will 
carry  a  fee.  To  do  this,  where  there  are  no  words  of  express  limita- 
tion, all  the  cases  agree  that  the  will  should  contain  some  provision 
in  respect  to  the  land  necessarily  inconsistent  with  the  estate  being 
for  life.     Freely  to  be  enjoyed,  etc.,  may  come  much  short  of  this. 

I  have  thus,  in  some  measure,  followed  the  counsel  for  the  defend- 
ant, who  has  much  elaborated  the  case  in  Cowper.  I  entirely  agree 
with  him,  that  it  will  be  found  on  due  consideration,  to  have  been 
so  mixed  and  compounded  with  various  circumstances  in  the  will,  as 
by  no  means  to  form  a  reliable  guide  in  deciding  the  case  at  bar. 
I  do  not  find,  however,  that  the  force  of  the  words  in  question  were 
at  all  reconsidered,  as  he  supposes,  in  Denn  ex  dan.  Gaskin  v.  Gas- 
kin,  Cowp.  657,  or  in  Wright  ex  dan.  Shaw  v.  Russell,  id.  661,  the 
case  stated  by  Ashurst,  J.  from  MSS. ;  though  I  really  think  either 
of  them  stronger  for  a  fee  than  the  one  at  bar;  and  the  general  rea- 
soning of  the  court  is  quite  in  point  against  seizing  on  equivocal 
words,  in  order  to  give  the  will  such  an  effect.  It  is  remarkable, 
that  in  each  of  the  latter  cases  a  disinheriting  legacy  was  given  to 
the  heir  at  law;  a  circumstance  which  I  should  suppose  of  much 
more    decisive    weight    than    the    doubtful    provision,  freely   to   be 


$l8      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.   IV.  CH.  I. 

enjoyed,  etc.  The  wills  also  contained  the  usual  general  clause, 
manifesting  the  testator's  intent  to  dispose  of  all  his  estate.  Yet 
they  were  held  to  carry  but  life  estates,  and  the  heir  at  law  recovered. 

Thus  stopping  with  Lord  Mansfield's  decisions  alone,  one  would 
suppose  it  impossible  to  maintain  the  plaintiff's  pretensions  upon  the 
will  before  us.  But  I  am  surprised  that  the  defendant's  counsel 
should  have  overlooked  the  case  of  Goodright  ex  dem.  Drewry  v. 
Barron,  u  East,  220,  decided  A.  D.  1809,  in  which  his  own  views 
were  adopted  by  the  King's  Bench,  and  which  I  cannot  distinguish 
from  the  case  before  us.  There  the  will  was  thus:  "  As  touching 
such  worldly  estate  wherewith  it  has  pleased  God  to  bless  me  in  this 
life,  I  give,  devise  and  dispose  of  the  same  in  manner  following: 
"  1.  A  cottage  to  T.  D.  and  his  heirs."  Then:  "Also  I  give  and 
bequeath  to  my  wife  Elizabeth,  whom  I  likewise  make  my  sole 
executrix,  all  and  singular  my  lands,  messuages  and  tenements  by 
her  freely  to  be  possessed  and  enjoyed."  The  question  was  whether 
the  wife  took  a  fee;  and  held  not.  The  case  was  ably  argued;  and 
Lord  Ellenborough,  C.  J.,  Le  Blanc,  J.,  and  Bayley,  J.,  who  spoke 
to  the  question  seriatim,  they  being  the  only  judges  who  heard  the 
argument,  all  concurred.  The  case  in  Cowper,  352,  was  fully  con- 
sidered ;  and  they  agreed,  that  the  introductory  words,  and  the  words 
freely,  etc.,  as  used  in  East,  would  not  of  themselves  carry  a  fee, 
because  they  were  not  necessarily  incompatible  with  an  estate  for 
life.  They  agreed  that  the  case  in  Cowper,  352,  must  have  gone, 
not  on  these  alone,  but  only  as  considered  in  connection  with  various 
other  explanatory  circumstances,  such  as  incumbrances  imposed,  etc. 
Only  one  of  the  learned  judges,  Le  Blanc,  J.,  adverted  to  the  use  of 
the  word  heirs  in  the  devise  to  T.  D.  as  indicating  that  the  testator 
understood  the  value  of  that  word.  Lord  Ellenborough  and  Bayley, 
J.,  took  up  the  matter  on  the  neat  point  as  presented  in  the  principal 
case.  The  former  agreed  that  the  introductory  words  might  be 
material;  but  alone  they  made  nothing.  "  They  were  not  sufficient 
of  themselves  to  carry  a  fee;  but  juncta  jwyant."  He  said  that,  in 
the  absence  of  express  words  to  limit  the  estate  in  fee,  there  must 
be  some  words  from  which  an  intention  to  pass  the  fee  would  be 
necessarily  implied.  Bayley,  J.,  taking  up  this  rule,  said  "  the  only 
words  on  which  any  doubt  could  arise  are  '  freely  to  be  possessed 
and  enjoyed;  "  but  they  may  mean  freely  during  her  life;  they  may 
mean  free  from  all  charges;  free  from  impeachment  of  waste;  they 
may  indeed  also  mean  freely  for  all  purposes  against  the  heir;  but 
as  it  is  not  certain  that  the  testator  used  them  in  this  latter  sense, 
v, e  1  annot  give  them  so  extended  a  meaning  against  the  heir." 

The  reasoning  of  the  counsel  for  the  plaintiffs  in  the  case  at  bar  is 


I.  i.]  FREEHOLDS   OF   INHERITANCE   OR   FEES.  519 

this:  First,  the  testator  indicated  his  general  intention  thus:  "  As 
to  all  my  worldly  interest,  all  my  property,  all  my  estate,  I  dispose 
of  the  same,"  etc.  Then,  says  the  counsel,  he  in  fact  gives  the 
same;  and  the  counsel  relies  on  these  two  words  in  the  introductory 
clause,  to  bring  it  down,  and  connect  it  with  the  devise  to  the  testa- 
tor's wife.  But  precisely  the  same  words  holding  the  same  relation, 
presented  themselves  in  Goodright  v.  Barron;  yet  held  they  were 
entirely  inefficient,  for  the  purpose  now  claimed.  "  The  word 
estate,"  said  Lord  Ellenborough,"  used  in  the  introductory  clause, 
is  completely  disjoined  from  the  devise  in  question,  and  cannot  be 
brought  down  to  join  in  with  the  latter  clause,  without  doing  violence 
to  the  words."  I  will  only  add,  it  is  impossible  to  distinguish  the 
case  at  bar  from  the  principle  of  that  to  which  he  was  speaking, 
and  scarcely  from  the  very  words. 

The  adjudication,  we  think,  accords  with  the  sound  rule  of  con- 
struction. 

There  must  be  judgment  for  the  defendant. 


d.   By  devise  under  modern  statutes. 

(1)  All  the  States  except  Connecticut  and  Florida  have  shifted 
the  presumption  by  statutory  enactment.1 

e.    The  rule  in  Shelly  s  Case. 

Olds,  J  ,  in  TANEY  v.  FAHNLEY. 

126  Indiana,  SS.  —  1890. 

That  the  rule  in  Shelley  s  Case  is  recognized  as  law,  and  a  rule  of 
property  in  this  State  is  too  well  settled  to  admit  of  controversy. 
Andrews  v.  Spurlin,  35  Ind.  262;  Sicelojf  v.  Redman,  26  Ind.  251; 
Small  v.  Howland,  14  Ind.  592;  Hull  v.  Beats,  23  Ind.  25. 

In  Doe  v.  Jackson,  5  Ind.  283,  the  rule  is  stated  as  follows: 
"  Where  a  freehold  is  limited  to  one  for  life,  and  by  the  same  instru- 
ment, the  inheritance  is  limited,  either  mediately  or  immediately, 
to  heirs  or  heirs  of  his  body,  the  first  taker  takes  the  whole  estate, 
either  in  fee  simple  or  fee  tail;  and  the  words  '  heirs  '  or  '  heirs  of 
the  body,'  are  words  of  limitation,  and  not  of  purchase." 

In  the  case  of  Hochstedler  v.  Hochstedler,  108  Ind.  506,  in  constru- 
ing a  will,  this  court  says:  "  But  the  word  '  heirs,'  as  Mr.  Preston 
says.  '  is  a  powerful  one,'  and  it  must  be  given  its  legal  force  and 

1  See  N.  Y.  R.  P.  L.  §  210.  The  common  law  rule  is  said  still  to  prevail  in 
the  District  of  Columbia.     Dembitz  on  Land  Titles,  vol,  1,  p.  99.  —  Ed. 


520      ESTATES   AS   TO    QUANTITY  AND    QUALITY.       [PT.  IV.  CH.  I. 

effect,  unless  the  words  of  the  will  clearly  assign  it  a  different  signifi- 
cation." Again  in  the  same  case,  it  is  said:  "  When  an  interest  or 
estate  is  given  in  one  clause  of  a  will  in  clear  and  decisive  terms, 
'  such  interest  or  estate  cannot  be  taken  away  or  cut  down  by  raising 
a  doubt  upon  the  extent  and  meaning  and  application  of  a  subsequent 
clause,  not  by  inference  therefrom,  nor  by  any  subsequent  words 
that  are  not  as  clear  and  decisive  as  the  words  of  the  clause  giving 
that  interest  or  estate.' 

In  the  case  of  Shinier  v.  Mann,  99  Ind.  190,  this  court  says: 
"  The  word  '  heirs  '  written  in  a  deed  or  will  is  one  of  great  power, 
and  its  force  is  not  impaired  by  the  mere  use  of  negative  or  restrain- 
ing words.  Fearne  expresses  this  doctrine  in  very  strong  words, 
for  he  declares  that  '  the  most  positive  direction,  will  not  defeat  the 
operation  of  the  rule  in  Shelley's  Case."  Continuing,  the  court 
further  say:  "  It  may  be  that  this  statement  of  the  law  is  some, 
what  too  strong  under  the  doctrine  of  later  cases,  but  certainly  the 
law  is  that  mere  negative  words  cannot  restrain  or  impair  the  force 
of  the  word  '  heirs.'  "  ' 


2.   The  Different  Kinds  of  Fees. 

a.    The  fee- farm  or  socage-tenure  fee. 

INGERSOLL  v.  SARGEANT. 

1  Wharton  (Pa.),  336.  —  1836. 
\_Reported  herein  at  p.  86.] 


VAN  RENSSELAER  v.  HAYS. 

19  New  York,  6S. —  1859. 
\Reported  herein  at  p.  81.] 


1  See  index  under  Shelley's  Case.  The  rule  in  She/ley's  Case,  originally  a  "  rule 
of  law  "  and  property,  has  become  by  statute  in  some  States  a  mere  rule  of  con- 
struction or  presumption.  In  some  of  the  States  it  has  been  abolished  leaving 
no  rule  of  construction  in  the  cases  other  than  the  general  one  that  the  inten- 
tion of  the  grantor  or  testator  is  to  be  sought  as  expressed  in  the  instrument. 
Then-  are  several  other  statutory  modification  of  the  rule  for  which  see  Jones' 
Law  of  Real  Property  on  Conveyancing,  §§  601-610.  See  also  the  American  note, 
;  of  Hutchins'  Williams  on  Real  Property.  For  the  New  York  rule  see 
£44  N.  Y.  R.  P.  I-.  — I'-o. 


I.  2.]  QUALIFIED   OR   DEFEASIBLE   FEES.  521 

b.    The  modern  fee  simple  absolute. ' 

c.    Qualified  or  defeasible  fees. 

(i.)  Determinable  Fees;    Fees  upon  [Special  or  Collateral]  Limitation. 

LEONARD  v.   BURR. 

iS  New  York,  96.  —  1858. 

Ejectment.  Plaintiff  Susan  Leonard  is  the  mother  and  only 
heir-at-law  of  Sidney  S.  Mills.  Mills  by  his  last  will  and  testament 
devised  to  Benjamin  Bailey,  "  the  use  of  three  and  one-half  acres, 
lying  east  of  the  road  opposite  the  homestead,  and  being  a  part  of  the 
same,  until  Gloversville  shall  be  incorporated  as  a  village,  and  then 
to  the  trustees  of  said  village  to  be  b)7  them  disposed  of  for  the  pur- 
pose of  establishing  a  village  library,  provided  an  amount  of  money 
equal  in  value  shall  be  raised  and  invested  by  said  trustees  in  the 
purchase  of  books  for  said  library." 

After  the  death  of  Mills,  Bailey  conveyed  the  premises  in  question 
to  defendant.  The  answer  alleges  that  the  village  has  never  been 
incorporated.  The  court  excluded  evidence  offered  by  plaintiff  to 
prove  the  incorporation  of  the  village,  and  held  as  matter  of  law  that 
the  devise  to  Bailey  was  absolute  and  in  fee  simple.  Plaintiffs 
excepted  to  these  rulings.  Judgment  for  defendant.  Plaintiff 
appeals. 

Strong,  J.  — The  devise  to  Bailey  is,  by  the  terms  of  it,  "  until 
Gloversville  shall  be  incorporated  as  a  village."  These  words  are 
part  of  the  devise  itself.  The  use  of  the  land,  which  imports  the 
land,  is  given  to  him  until  the  happening  of  that  event.  The  event 
was  contingent  when  the  will  was  made,  and  at  the  death  of  the 
testator.  Had  the  will  stopped  here,  in  respect  to  a  disposition  of 
this  land,  no  one  would  doubt  that  the  estate  of  Bailey  would  have 
been  limited  in  duration  to  the  contingency  mentioned.  He  would 
have  taken  a  base  or  qualified  fee;  an  estate  which  might  have  con- 
tinued forever,  but  which  would  have  been  liable  to  determination 
by  the  occurring  of  the  contingency.  The  qualification  to  the  devise 
would  have  created  what  is  termed  in  the  books  a  collateral  limita- 
tion, making  the  estate  determinable  upon  an  event  "  collateral  to 
the  time  of  its  continuance."  4  Kent's  Com.  129;  Fearne,  ed.  of 
1826,  12  to  15,  and  notes.  Among  the  instances  of  collateral  limita- 
tions are,  to  a  man  and  his  heirs,  tenants  of  the  manor  of  Dale;  or 

1  Many  illustrations  of  the  nature  and  qualities  of  such  estates  appear  herein. 
For  definition  see  N.  Y.  R.  P.  L.  §  21.  —  Ed. 


522      ESTATES   AS   TO  QUANTITY   AND   QUALITY.       [PT.  IV.  CH.  I. 

to  a  woman  during  widowhood;  or  to  C.  till  the  return  of  B.  from 
Rome;  or  until  B.  shall  have  paid  him  twenty  pounds.  4  Kent,  129; 
1  Shep.  Touch.  125;  2  Crabb's  Law  of  Real  Prop.  §  2135;  2  Bl. 
Com.  155;  Fearne,  12,  13,  and  notes.  In  respect  to  such  limita- 
tions, the  rule  is,  that  "  the  estate  will  determine  as  soon  as  the 
event  arises,  and  it  never  can  be  revived."  4  Kent,  129,  and  cases 
cited;  Lewis  on  Perpet.  657;  Crabb's  Real  Prop.  §  2135. 

I  am  unable  to  see  how  the  devise  to  Bailey,  by  the  words  of  the 
will  giving  him  the  use  of  the  land  until  the  event  above  specified, 
is  affected,  as  to  the  duration  of  the  estate,  by  any  other  part  of  the 
will.  The  devise  over,  in  the  same  clause  of  the  will  —  when 
Gloversville  shall  be  incorporated  —  to  the  trustees  of  said  village, 
to  be  disposed  of  for  the  purpose  and  with  the  proviso  therein 
stated,  is  a  further  disposition  of  the  land,  to  take  effect  upon  the 
termination  of  the  estate  of  Bailey.  It  was  not  intended  thereby  to 
abridge  Bailey's  interest,  but  to  give  the  land  to  others  when  his 
interest  had  ceased.  The  language  of  the  devise  over  is  "and 
then,"  obviously  upon  the  incorporation  of  the  village,  "to  the 
trustees."  The  incorporation  is  fixed  as  the  limit  of  the  prior  estate 
and  the  period  of  commencement  of  the  subsequent  one. 

Whether,  therefore,  the  latter  can  be  upheld,  or  is  invalid  for  any 
cause,  can  make  no  difference  with  the  former  estate,  which  had 
come  to  its  appointed  end  by  an  event  wholly  independent  of  the 
operation  or  failure  of  that  attempted  to  be  created  by  the  will  to 
succeed  it. 

If  the  devise  of  the  first  estate  had  been  in  fee,  with  a  proviso, 
that,  upon  the  contingency  expressed  in  the  will,  the  trustees  should 
have  the  land,  the  case  would  be  very  different.  The  first  estate 
would  then  be  determined  only  by  the  second  taking  effect.  That 
would  be  according  to  the  language  and  spirit  of  the  limitation. 
The  limitation,  in  such  a  case,  would  be  what  is  denominated  a  con- 
ditional limitation.  There  would  be  an  estate  in  fee,  determinable, 
during  the  regular  period  of  its  continuance,  by  another  estate  tak- 
ing effect  in  an  event  provided  for.  And  if  the  trustees  could  not 
take  the  land,  the  estate  in  fee  would  continue,  as  if  no  provision  for 
another  estate,  in  defeasance  of  it,  had  been  made.  4  Kent,  127; 
Lewis  on  Perpet.  531,  535,  657,  658. 

It  was  doubtless  the  intention  of  the  testator  to  dispose  absolutely 
of  the  entire  interest  in  the  land,  but  he  intended  to  give  the  land 
to  llailey  until  a  particular  event,  and  then  to  the  trustees.  Assum- 
ing the  devise  to  the  trustees  to  be  void,  his  intent,  as  to  that,  must 
fail;  but  there  is  no  ground  for  claiming  that,  in  that  case,  he 
intended  Bailey's  estate  should  continue  beyond  the  limit  prescribed 


I.  2.]  QUALIFIED   OR   DEFEASIBLE    FEES.  523 

in  the  devise  to  him.  The  event  was  not  foreseen,  and  consequently 
no  provision  was  made  for  it.  The  court  cannot  supply  what 
probably  the  testator  would  have  done,  if  he  had  known  the  law 
when  he  framed  the  will.  Pickering  v.  Langdon,  22  Maine,  428,  429; 
Chapmanv.  Brown,  3  Burr,  1634;  Doo  v.  Brabant,  4  Durn.  &  East,  706. 

Several  cases  arising  upon  the  Eden  will  are  referred  to  and  relied 
upon  in  favor  of  the  defendant.  Anderson  v.  Jackson,  16  John.  382; 
Lion  v.  Burtiss,  20  John.  483;  Wilkes  v .  Lion,  2  Cow.  55^;  Waldron 
v.  Gianini,  6  Hill,  601.  By  that  will  certain  lands  were  devised  to 
each  of  two  sons  of  the  testator  in  fee.  It  was  then  directed  that  if 
either  should  die  without  issue,  his  share  should  go  to  the  survivor; 
and  in  case  of  both  their  deaths  without  issue,  the  testator's  brother 
and  sister  should  have  all  the  property.  It  was  held  that  the  limita- 
tion over  to  the  surviving  son  was  valid  as  an  executory  devise,  and, 
having  taken  effect  in  his  favor,  the  Supreme  Court  held  that  he 
became  seized  of  the  land  devised  to  the  deceased  son,  in  fee  tail  with 
a  remainder  expectant  in  favor  of  the  brother  and  sister,  which  estate 
tail  the  statute  converted  into  a  fee  simple  absolute.  In  the  Court 
of  Errors  the  devise  to  the  brother  and  sister  was  held  void,  the 
Chancellor  concurring  with  the  Supreme  Court  as  to  the  ground  of 
invalidity;  but  one  of  the  senators  placed  his  opinion  on  the  ground 
that  the  latter  devise  was  orginally  limited  upon  too  remote  a  con- 
tingency—  an  indefinite  failure  of  issue  of  the  previous  devisees. 
No  division  of  the  court  was  taken  as  to  the  ground.  There  is 
nothing  here  to  conflict  with  the  views  above  presented,  or  which  can 
aid  the  defense. 

Some  other  cases  are  cited  by  the  defendant's  counsel.  In  Jack- 
son v.  Brown,  13  Wend.  437,  the  testator  devised  lands  to  his  son,  S. 
B.,  for  life,  with  remainder  to  the  first  son  of  S.  B.  for  life,  with 
remainder  to  the  first  and  every  other  son  and  sons  of  the  eldest 
son  of  his  son,  S.  B.,  successively,  to  hold  the  same  in  tail  male.  The 
court  decided  that  the  limitation  over  to  the  great-grandson  was  too 
remote,  and  that  the  particular  intent  of  the  testate r,  to  give  life 
estates  to  the  sons,  must  therefore  fail;  but,  to  effect  the  general 
intent,  to  keep  the  estate  in  his  family  as  long  as  possible,  construed 
the  devise  to  give  a  life  estate  to  the  son  and  an  estate  tail  to  the 
grandson.  The  point  of  the  case  is,  that  the  general  intent  of  a 
testator,  apparent  upon  a  will,  will  be  carried  into  effect,  if  practi- 
cable, although  his  particular  intent  cannot  prevail.  In  the  present 
case  no  intention  of  the  testator  as  to  the  disposition  of  the  land 
after  the  termination  of  the  first  estate,  appears  upon  the  will, 
except  that  which,  assuming  the  devise  over  to  be  void,  the  law  will 
not  execute. 


524      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT-   Iv-   CH-  *• 

In  Doe  ex  dem.  Cannon  v.  Rucastlc,  8  Man.  Grang.  &  Scott,  876, 
the  testator  devised  land  to  his  son  for  life,  and  from  and  after  his 
death  gave  the  same  to  the  issue  of  his  son,  and  if  he  should  not 
have  any,  to  the  testator's  heirs-at-law.  The  court  decided  that  the 
son  took  an  estate  tail.  In  Ibbetson  v.  Ibbetson,  10  Simons,  495,  the 
only  point  adjudged  was  that  a  trust  of  personal  estate  was  void  for 
remoteness.  These  cases,  and  Tollemache  v.  Coventry,  8  Bligh,  N.  S. 
547,  cited  in  the  last  case,  have  no  application  to  the  one  before  the 
court,  Mortimer  v.  Frost,  2  Simons,  274,  and  Mackuwrth  v.  Hink/nan, 
2  Keen.  658,  are  similar  to  Jackson  \.Bro7un,  before  stated. 

The  foregoing  are  the  principal  cases  cited  on  the  part  of  the 
defendant;  the  remaining  ones  are  to  rules  about  which  there  is  no 
dispute. 

I  am  satisfied,  for  the  reasons  stated,  that  if  Gloversville  has  been 
incorporated,  and  the  devise  to  the  trustees  cannot  have  effect,  the 
defendant,  as  the  grantee  of  Bailey,  has  no  estate  in  the  premises  in 
question,  and,  therefore,  that  the  court  below,  at  the  trial,  erred  in 
deciding  the  contrary,  and  in  the  rejection  of  the  evidence  offered 
to  prove  that  the  incorporation  had  taken  place. 

If  the  village  of  Gloversville  has  been  incorporated,  and  the  trustees 
have  an  estate  in  the  land  under  the  devise  to  them,  the  plaintiffs, 
of  course,  cannot  recover,  as  they  must  have  title  in  themselves  to 
maintain  the  action.  The  defendant  may  avail  himself  of  the  title 
of  the  trustees,  although  not  connected  with  it,  as  a  bar  to  the 
action.  But  if  the  trustees  cannot  take  the  estate  designed  to  be 
given  them,  which  appears  to  have  been  assumed  by  the  counsel  and 
the  court  at  the  trial,  and  Bailey's  title  has  ceased  by  its  own  limita- 
tion, the  testator,  as  to  this  land,  after  the  determination  of  Bailey's 
interest,  died  intestate,  and  it  belongs  to  the  plaintiff,  in  right  of 
the  wife  as  heir-at-law. 

The  question  of  the  validity  of  the  devise  to  the  trustees  does  not 
arise  in  this  appeal,  as  it  does  not  appear  that  Gloversville  has  been 
incorporated.  Until  that  fact  is  proved,  it  will  not  appear  that  the 
estate  of  Bailey  has  terminated,  and  the  question  upon  the  devise 
will  not  be  reached.  It  was  considered,  at  the  trial,  that  the  point 
was  involved  in  the  question  of  evidence,  in  reference  to  materiality; 
that  if  the  devise  to  the  trustees  was  void,  the  estate  of  Bailey  was 
an  absolute  fee;  if  valid,  the  title  would  be  out  of  th^  plaintiffs,  and, 
therefore,  the  evidence  excluded  was  immaterial  — it  would  not,  in 
either  case,  benefit  the  plaintiff.  But  this  view  is  erroneous  in  two 
respects;  it  could  n<>t  properly  he  assumed,  if  the  devise  over  was 
valid,  that  the  plaintiffs  had  not  the  title,  as  the  trustees  may  have 
refused  to  accept  the  devise,  or  lost  their  rights  under  it  and  the 


I.  2.]  QUALIFIED    OR   DEFEASIBLE    FEES.  525 

plaintiffs  were  entitled  to  give  proof  on  the  subject,  and  the  evidence 
was  important  to  show  that  Bailey's  estate  had  ceased.  It  is  not 
intended  now  to  express  or  intimate  any  opinion  as  to  the  validity 
of  the  devise  over. 

My  conclusion  is,  that  the  judgment  should  be  reversed  and  a  new 
trial  granted,  with  costs  to  abide  the  event. 


Allen,  J.,  in  FIRST    UNIVERSALIST    SOCIETY    OF  NORTH 
ADAMS  v.  BOLAND. 

155   Massachusetts,  171.  —  1892. 

The  grant  to  the  plaintiff  was  to  have  and  to  hold,  etc.,  "  so  long 
as  said  real  estate  shall  by  said  society  or  its  assigns  be  devoted  to 
the  uses,  interests,  and  support  of  those  doctrines  of  the  Christian 
religion,"  as  specified.  "  And  when  said  real  estate  shall  by  said 
society  or  its  assigns  be  diverted  from  the  uses,  interests,  and  sup- 
port aforesaid  to  any  other  interests,  uses,  or  purposes  than  as  afore- 
said, then  the  title  of  said  society  or  its  assigns  in  the  same  shall 
forever  cease,  and  be  forever  vested  in  the  following  named  per- 
sons," etc.  These  words  do  not  grant  an  absolute  fee,  nor  an  estate 
on  condition,  but  an  estate  which  is  to  continue  till  the  happening 
of  a  certain  event,  and  then  to  cease.  That  event  may  happen  at 
any  time,  or  it  may  never  happen.  Because  the  estate  may  last  for- 
ever, it  is  a  fee.  Because  it  may  end  on  the  happening  of  the 
event,  it  is  what  is  usually  called  a  determinable  or  qualified 
fee.  The  grant  was  not  upon  a  condition  subsequent,  and  no  re> 
entry  would  be  necessary;  but  by  the  terms  of  the  grant  the  estate 
was  to  continue  so  long  as  the  real  estate  should  be  devoted 
to  the  specified  uses,  and  when  it  should  no  longer  be  so  devoted, 
then  the  estate  would  cease  and  determine  by  its  own  limitation. 
Numerous  illustrations  of  words  proper  to  create  such  qualified  or 
determinable  fees  are  to  be  found  in  the  books,  one  of  which,  as  old 
as  Walsingham's  Case,  2  Plowd.  557,  is  "as  long  as  the  church  of  St. 
Paul  shall  stand."  Brattle  Square  Church  v.  Grant,  3  Gray,  142, 
147;  Easterbrooks  v.  Tillinghast,  5  Gray,  17;  Ashley  v.  Warner,  11 
Gray,  43;  Attorney  General  v.  Merrimack  Manuf.  Co.,  14  Gray,  586, 
612;  Fifty  Associates  v.  Howland,  n  Met.  99,  102;  Owen  v.  Field,  102 
Mass.  90,  105;  1  Washb.  Real  Prop.  3d  ed.  79;  2  Washb.  Real  Prop. 
3d  ed.  20,  21;  4  Kent  Com.  126,  127,  132,  note;  2  Crabb,  Real  Prop. 
§§  2135,  2136;  2  Flint,  Real  Prop.  230,  232;  Shep.  Touchst.  121,  125. 

A  question  or  doubt,  however,  has  arisen,  though  not  urged  by 


526      ESTATES   AS   TO   QUANTITY   AND   QUALITY.      [PT.  IV.  CH.  I. 

counsel  in  this  case,  whether  after  all  there  is  now  any  such  estate 
as  a  qualified  or  determinable  fee,  or  whether  this  form  of  estate  was 
done  away  with  by  the  statute  quia  emptores.  See  Gray,  Rule 
against  Perpetuities,  §§  31-40,  where  the  question  is  discussed  and 
authorities  are  cited.  We  have  considered  this  question,  and  what- 
ever may  be  the  true  solution  of  it  in  England,  where  the  doctrine 
of  tenure  still  has  some  significance,  we  think  the  existence  of  such 
an  estate  as  a  qualified  or  determinable  fee  must  be  recognized  in  this 
country,  and  such  is  the  general  consensus  of  opinion  of  courts  and 
text  writers.  Jamaica  Pond  Aqueduct  v.  Chandler,  9  Allen,  159,  168; 
Leonards.  Burr,  18  N.  Y.  96;  Gillespie  v.  Broas,  23  Barb.  370;  State 
v.  Brozcnt  3  Dutch.  13;  Henderson  v.  Hunter,  59  Penn.  St.  335; 
Wiggins  Ferry  Co.  v.  Ohio  6°  Mississippi  Railway,  94  111.  83,  93;  1 
Washb.  Real  Prop.  3d  ed.  76-78;  4  Kent  Com.  9,  10,  129.  See 
also,  of  English  works  in  addition  to  citations  above,  Shep.  Touchst. 
101;  2  Bl.  Com.  109,  154,  155;  1  Cruise,  Dig.  tit.  1,  §§  72-76;  2 
Flint.  Real  Prop.  136-138;  1  Prest.  Est.  431,  441;  Challis,  Real 
Prop.  197-208. 

Since  the  estate  of  the  plaintiff  may  determine,  and  since  there  is 
no  valid  limitation  over,  it  follows  that  there  is  a  possibility  of 
reverter  in  the  original  grantor,  Clark.  This  is  similar  to,  though 
not  quite  identical  with,  the  possibility  of  reverter  which  remains  in 
the  grantor  of  land  upon  a  condition  subsequent.  The  exact  nature 
and  incidents  of  this  right  need  not  now  be  discussed,  but  it  repre- 
sents whatever  is  not  conveyed  by  the  deed,  and  it  is  the  possibility 
that  the  land  may  revert  to  the  grantor  or  his  heirs  when  the  granted 
estate  determines.  Challis,  Real  Prop.  31,  63-65,  153,  174,  198, 
200,  212;  1  Prest.  Est.  431,  471;  Newis  v.  Lark,  2  Plowd.  403, 
413;  Shep.  Touchst.  120;  2  Washb.  Real  Prop.  3d  ed.  20,  579;  4 
Kent  Com.  10;  Smith  v.  Harrington,  4  Allen,  566,  567;  Attorney  Gen- 
eral v.  Merrimack  Manuf.  Co.,  14  Gray  586,  612;  Brattle  Square 
Church  v.  Grant,  3  Gray,  142,  147-150;  Owen  v.  Field,  102  Mass.  90, 
105,  106;  Gillespie  v.  Broas,  23  Barb.  370;  Gray,  Rule  against  Per- 
petuities, §§  33,  34,  39,  and  cases  cited.  / 

Clark's  possibility  of  reverter  is  not  invalid  for  remoteness.  V  It 
has  been  expressly  held  by  this  court  that  such  possibility  of  reverter 
upon  breach  of  a  condition  subsequent  is  not  within  the  rule  against 
perpetuities.  Tobey  v.  Moore,  130  Mass.  448;  French  v.  Oil  South 
Society,  106  Mass.  479.  If  there  is  any  distinction  in  this  respect 
between  su<  li  possibility  of  reverter  and  that  which  arises  upon  the 
determination  of  a  qualified  fee,  it  would  seem  to  be  in  favor  of  the 
latter.  Bui  they  should  be  governed  by  the  same  rule.  If  one  is 
n<>t    held    void   for  remoteness,  the  other  should  not  be.     The  very 


I.  2.]  FEES    UPON   CONDITION.  527 

many  cases  cited  in  Gray,  Rule  against  Perpetuities,  §§  305-312. 
show  conclusively  that  the  general  understanding  of  courts  and  of 
the  profession  in  America  has  been  that  the  rule  as  to  remoteness 
does  not  apply;  though  the  learned  author  thinks  this  view  errone- 
ous in  principle. 


(2.)  Fees  U1>on  Condition. 
(a.)  In  general. 

NICOLL  v.  NEW  YORK  AND  ERIE  RAILROAD  CO. 
12  New  York,  121.  —  1S54. 

Ejectment  to  recover  certain  lands  conveyed  by  one  Dederer  to 
the  Hudson  and  Delaware  Railroad  Co.  and  by  that  company  to  this 
defendant  under  authority  of  statute. 

Nicoll  has  succeeded  to  Dederer's  interest  in  the  premises,  subject 
to  the  rights  of  the  railroad  company,  and  now  claims  to  be  entitled 
to  the  lands  freed  from  such  rights  because  of  an  alleged  breach  of 
a  condition  under  which  the  railroad  company  held.  Further  facts 
appear  in  the  opinion.  The  last  judgment  below  was  for  defendant. 
Plaintiff  appeals  to  this  court. 

Parker,  J.  — The  granc  from  Dederer  to  the  Hudson  and  Dela- 
ware Railroad  Company,  bearing  date  the  first  day  of  July,  1836, 
was  made  to  that  company  "  and  their  successors."  Under  that 
grant,  there  can  be  no  doubt  the  Hudson  and  Delaware  Railroad 
Company  took  a  fee.  The  words  of  perpetuity  used  would  have 
been  sufficient  to  describe  a  fee,  even  under  the  most  strict  require- 
ments of  the  common  law. 

The  company  had  ample  power  to  purchase  lands.  It  was  a  power 
incident  at  common  law  to  all  corporations,  unless  they  were  specially 
restrained  by  their  charters  or  by  statute.  2  Kent,  281;  Co.  Litt. 
44^.,  300^.;  1  Kyd.  on  Corp.  76,  78,  108,  115;  3  Pick.  239.  And  in 
this  case  the  power  was  expressly  conferred  by  the  ninth  section  of 
the  charter,  Sess.  Laws  of  1835,  p.  113;  and  by  the  sixteenth  section 
there  were  given  to  it  the  general  powers  conferred  upon  corpora- 
tions, 1  R.  S.  731,  one  of  which  is  that  of  holding,  purchasing  and 
conveying  such  real  estate  as  the  purposes  of  the  corporation  may 
require.  But  if  no  words  of  perpetuity  had  been  used,  the  grantor 
owning  a  fee,  the  company  would  have  taken  a  fee;  for  the  statute 
is  now  imperative,  that  every  grant  shall  pass  all  the  estate  or  inter- 
est of  the  grantor,  unless  the  intent  to  pass  a  less  estate  or  interest 


528      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

shall  appear  by  express  terms  or  be  necessarily  implied  in  the  terms 
of  the  grant,      i  R.  S.  748,  §  1. 

But  it  is  objected  that  because,  by  the  act  of  incorporation,  there 
was  given  to  it  only  a  term  of  existence  of  fifty  years,  Laws  of  1835, 
p.  1  to,  §  1,  therefore  the  grant  shall  be  deemed  to  have  conveyed 
an  estate  for  years,  and  not  in  fee.  The  unsoundness  of  that 
position  is  easily  shown.  It  was  never  yet  held  that  a  grant  of  a 
fee  in  express  terms  could  be  restricted  by  the  fact  that  the  grantee 
had  but  a  limited  term  of  existence.  If  it  were  so,  a  grant  could 
never  be  made  to  an  individual  in  fee,  because,  in  his  earthly  exist- 
ence, he  is  not  immortal.  Under  such  a  rule,  a  man  could  never 
buy  a  greater  interest  in  a  farm  than  a  life  estate.  It  would  follow 
that  all  estates  would  be  life  estates,  except  those  held  by  perpetual 
corporations.  The  intent  of  parties,  fully  expressed  in  a  deed,  would 
avail  nothing,  but  all  grants  would  be  measured  by  the  mortality  of 
the  grantee.  It  is  needless  to  follow  out  the  proposition  further  to 
show  its  absurdity. 

It  is  not.  to  the  parties  to  a  grant,  but  to  its  terms,  that  we  look 
to  ascertain  the  character  and  extent  of  the  estate  conveyed.  Such 
was  the  rule  at  common  law,  and  is  still  by  statute.  1  R.  S.  748, 
§  1.  The  change  made  by  the  statute  favors  the  grantee,  where 
there  are  no  express  terms  in  the  grant,  by  presuming  the  grantor 
intended  to  convey  all  his  estate. 

At  common  law,  it  was  only  where  there  were  no  express  terms, 
defining  the  estate  in  the  conveyance,  that  the  term  of  legal  exist- 
ence of  the  grantee  was  deemed  to  be  the  measure  of  the  interest 
intended  to  be  conveyed.  Thus,  words  of  perpetuity,  such  as 
"  heirs  or  successors,"  were  necessary  to  convey  a  fee.  A  grant  to 
an  individual,  without  such  words,  conveyed  only  a  life  estate.  For 
the  same  reason  a  grant,  without  such  words,  to  a  corporation  aggre- 
gate, Viner's  Ab.  Estate,  L.  3,  or  to  a  mayor  or  commonalty,  lb.  3, 
conveyed  a  fee,  because  the  grantees  were  perpetual.  The  grantee 
named  in  such  case  having  a  perpetual  existence,  the  estate  could 
not  have  been  enlarged  by  words  of  succession. 

Hut  this  is  now  changed  by  our  Revised  Statutes.  Words  of 
inheritance  or  succession  are  no  longer  necessary,  and,  in  their 
absence,  we  look,  not  to  the  term  of  existence  of  the  grantee  to 
rtain  the  estate,  but  to  the  amount  of  interest  owned  by  the 
grantor  at  the  time  he  conveyed.  All  his  estate  is  deemed  to  have 
passed  by  the  grant.     1  R.  S.  748,  §  1. 

All  this  is  applicable  only  to  cases  where  the  grant  is  silent  as  to 
the  extent  of  interest  conveyed.  Where  that  interest  is  expressly 
described,  as  in  this  case,  the  law  never,  either  before  or  since  our 


I.  2.]  FEES    UPON   CONDITION.  529 

revision,  did  violence  to  the  intent  of  the  parties,  by  cutting  down 
the  estate  agreed  to  be  conveyed  to  the  measure  of  the  grantee's 
term  of  existence.  It  has  long  been  one  of  the  maxims  of  the  law, 
that  "  no  implication  shall  be  allowed  against  an  express  estate 
limited  by  express  words."  Viner's  Ab.  Implication,  A.  5;  1 
Salk.  236. 

It  is  erroneous  to  say  that  an  estate  in  fee  cannot  be  fully  enjoyed 
by  a  natural  person,  or  by  a  corporation  of  limited  duration.  It  is 
an  enjoyment  of  the  fee  to  possess  it,  and  to  have  the  full  control  of 
it,  including  the  power  of  alienation  by  which  its  full  value  may  at 
once  be  realized. 

It  is  well  settled  that  corporations,  though  limited  in  their  dura- 
tion, may  purchase  and  hold  a  fee,  and  they  may  sell  such  real  estate 
whenever  they  shall  find  it  no  longer  necessary  or  convenient. 
5  Denio,  389;  2  Preston  on  Estates,  50.  Kent  says:  "  Corporations 
have  a  fee  simple  for  the  purpose  of  alienation,  but  they  have  only  a 
determinable  fee,  for  the  purpose  of  enjoyment.  On  the  dissolution 
of  the  corporation,  the  reverter  is  to  the  original  grantor  or  his 
heirs;  but  the  grantor  will  be  excluded  by  the  alienation  in  fee,  and 
in  that  way  the  corporation  may  defeat  the  possibility  of  a  reverter. 
2  Kent,  282;  5  Denio,  389;  1  Comst.  R.  509.'  Large  sums  of  money 
are  accordingly  expended  by  railroad  companies  in  erecting  extensive 
station-houses  and  depots,  and  by  banking  corporations  in  erecting 
banking-houses,  because,  holding  the  land  in  fee,  they  may  be  able 
to  reimburse  themselves  for  the  outlay  by  selling  the  fee  before  the 
termination  of  their  corporate  existence. 

The  Hudson  and  Delaware  Railroad  Company,  then,  by  their 
grant  from  Dederer,  took  a  title  in  fee,  but  it  was  a  fee  upon  con- 
dition, there  being  in  the  grant  an  express  condition  that  the 
road  should  be  constructed  by  that  company  within  the  time  pre- 
scribed by  the  act  of  incorporation.  This  was  not  a  condition 
precedent,  as  was  argued  by  the  plaintiff's  counsel,  but  a  condition 
subsequent.  The  fee  vested  at  once,  subject  to  being  divested  on 
a  failure  to  perform  the  condition.  This  is  apparent  from  the  lan- 
guage employed  in  the  grant  and  from  the  character  of  the  trans- 
action. There  are  no  technical  words  by  which  to  distinguish 
between  conditions  precedent  and  subsequent.  Whether  a  con- 
dition be  one  or  the  other  is  matter  of  construction,  and  depends 
upon  the  intention  of  .the  party  creating  the  estate.  4  Kent,  124; 
1  Term  R.  645;  2  Bos.  &  Pull.  295;  3  Peters'  U.  S.  R.  346.  In 
the    latter   case,    Marshall,   Ch.   J.,   said:     "If    the  act  (on   which 

1  It  is  now  settled  in  New  York  that  there  is  no  reverter  if  the  corporation  be 
one  having  stock  and  stockholders.     Heath  v.  Barmore,  50  N.  Y.  302.  —  Ed. 

LAW  OF  PROP.   IN  LAND  —  34 


530      ESTATES   AS   TO  QUANTITY   AND    QUALITY.       [PT.  IV.  CM.   I. 

the  estate  depends)  does  not  necessarily  precede  the  vesting  of 
the  estate,  but  may  accompany  or  follow  it  if  this  is  to  be  collected 
from  the  whole  instrument,  the  condition  is  subsequent."  In 
this  case  it  was  evidently  the  design  of  the  parties  that  the  estate 
should  vest  at  once,  so  that  the  grantee  might  proceed  immediately 
with  the  construction  of  the  road;  otherwise  a  condition  that  it 
should  be  completed  within  a  given  time,  or  ever  completed,  would 
be  impossible.  From  the  character  of  the  condition,  it  could  not  be 
a  condition  precedent.  Possession  and  control  of  the  land  must 
necessarily  accompany  the  construction  and  precede  the  completion 
of  the  road.  The  grant  is  not  made  to  take  effect  on  the  happening 
of  a  certain  event,  but  in  presently  and  liable  to  be  divested  by  the 
grantee's  failure  to  perform  the  condition.  See  also,  5  Ham.  Ohio 
Rep.  389;  9  East  R.  170;  5  Pick.  R.  528;  18  Martin's  Louis.  R.  221; 
Co.  Litt.  246^.  Kent  says  (4  Kent,  129):  "  Conditions  subsequent 
are  not  favored  in  the  law  and  are  construed  strictly,  because  they 
tend  to  destroy  estates."  They  can  only  be  reserved  for  the  benefit 
of  the  grantor  and  his  heirs,  and  no  others  can  take  advantage  of  a 
breach  of  them.  4  Kent  Com.  122,  127;  2  Black.  Com.  154.  The 
plaintiff  took  his  deed  of  the  farm  on  the  first  of  April,  1844.  This 
was  one  year  before  the  expiration  of  the  time  for  constructing  the 
road,  and  two  years  before  the  Hudson  and  Delaware  Railroad  Com- 
pany conveyed  to  the  defendants.  At  that  time,  therefore,  there 
had  been  no  breach  of  the  condition;  on  the  contrary,  the  right  of 
the  company  was  expressly  recognized  and  reserved  in  the  deed. 
Certainly,  then,  Dederer,  when  he  conveyed,  had  no  assignable 
interest. 

A  mere  failure  to  perform  a  condition  subsequent  does  not  divest 
the  estate.  The  grantor  or  his  heirs  may  not  choose  to  take 
advantage  of  the  breach,  and  until  they  do  so,  by  entry,  or  by  what 
is  now  made  by  statute  its  equivalent,  there  is  no  forfeiture  of  the 
estate.  This  was  the  common  law,  and  it  has  not  been  altered  by 
statute  so  as  to  give  a  right  of  entry  to  an  assignee  in  any  instance 
not  coupled  with  a  reversionary  interest,  as  in  the  cases  of  estates 
for  years  and  for  life,  except  in  cases  of  leases,  or  rather  of  grants 
in  fee,  reserving  rent.  To  that  extent  the  law  was  changed  in  Eng- 
land by  32  Henry  VIII.,  ch.  34;  and  similar  enactments  have  been 
made  in  several  of  the  States.  In  this  State,  these  provisions  will 
be  found  at  1  R.  S.  748,  §§  23,  24  and  25,  and  are  limited  to 
grants  or  leases  in  fee  reserving  rents,  and  to  leases  for  lives  and  for 
years.1  As  to  other  grants  upon  condition,  the  common  law  is 
unchanged.      2  Kent,   123. 

1  See  §  193  N.  Y.  R.  P.  L.  —  Ed. 


I.  2.]  FEES    UPON   CONDITION.  53 1 

There  was  a  reason  for  the  statutory  change  in  the  particular  cases 
mentioned;  for  in  them  the  grantor  had  an  interest  independent  of 
the  possibility  of  reverter.  In  the  cases  of  a  grant  or  lease  in  fee, 
though  the  grantor  has  no  reversion,  he  has  an  interest  by  way  of 
annual  rents  reserved,  and  in  the  cases  of  leases  for  lives  and  years, 
he  has  an  actual  reversion  of  what  remains  after  the  expiration  of 
the  particular  estates.  In  these  cases,  therefore,  he  has  a  vested 
interest,  and  may  well  be  permitted  to  assign  with  it,  and  his  assignee 
to  take  with  such  interest,  his  right  of  entry  for  non-performance  of 
a  condition  subsequent;  for  the  right  to  enforce  a  forfeiture  is  neces- 
sary to  the  collection  of  the  rents  and  to  the  protection  and  enjoy- 
ment of  the  reversion.  But  where  a  fee  simple,  without  a  reservation 
of  rents,  is  granted  upon  a  condition  subsequent,  as  in  this  case, 
there  is  no  estate  remaining  in  the  grantor.  There  is  simply  a  possi- 
bility of  reverter,  but  that  is  no  estate.  There  is  not  even  a  possi- 
bility coupled  with  an  interest,  but  a  bare  possibility  alone.  It  has 
been  said  such  possibilities  were  assignable  in  equity;  but  those 
were  interests  of  a  very  different  character,  as  I  will  presently  show. 
So  far  from  including  these,  Kent  says  (4  Kent,  Com.  130):  "A 
court  of  equity  will  never  lend  its  aid  to  divest  an  estate  for  the 
breach  of  a  condition  subsequent,"  and  the  chancellor  acted  upon 
that  rule  in  Livingston  v.  Stickles,  8  Paige,  398. 

All  contingent  and  executory  interests  were  assignable  in  equity, 
and  would  be  enforced  if  made  for  a  valuable  consideration.  4 
Kent,  269.  But  these  words  had  an  ascertained  legal  signification; 
and  it  was  never  claimed  that  they  were  applicable  to  a  case  like  that 
under  consideration.  It  will  hardly  be  pretended  that  Dederer's 
possibility  of  reverter  was  a  contingent  or  an  executory  interest,  in 
the  legal  sense  of  these  words. 

By  the  Revised  Statutes  (1  R.  S.  725,  §  35),  expectant  estates 
are  descendible,  devisable  and  alienable,  in  the  same  manner  as 
estates  in  possession;  and  it  is  claimed  that  Dederer  had  an  expect- 
ant estate.  But  we  are  relieved  from  all  doubt  on  this  point,  by  the 
fact  that  the  statute  itself  has  furnished  the  definition  of  the  term 
"  expectant  estates."  They  are  described  (1  R.  S.  723,  §  9)  as 
including  future  estates  and  reversions;  and  these  expressions  are 
also  defined  in  §§  10  and  12.  A  future  estate  is  one  limited  to 
commence  in  possession  at  a  future  day,  either  without  the  inter- 
vention of  a  precedent  estate,  or  on  the  determination,  by  lapse  of 
time  or  otherwise,  of  a  precedent  estate  created  at  the  same  time. 
And  by  §  13,  a  future  estate  is  said  to  be  vested,  where  there 
are  persons  in  being  who  would  have  an  immediate  right  to  the  pos- 
session  of  the  lands,  upon  the  ceasing  of  the  intermediate  or  pre- 


532      ESTATES   AS   TO  QUANTITY   AND    QUALITY.       [PT.   IV.  CH.  I. 

cedent  estate;  and  "  contingent,"  whilst  the  person  to  whom,  or  the 
event  upon  which  they  are  limited  to  take  effect,  remains  uncertain. 
A  reversion  is  defined  as  the  residue  of  an  estate  left  in  the  grantor 
or  his  heirs,  or  in  the  heirs  of  a  testator,  commencing  in  possession  on 
the  determination  of  the  particular  estate  granted  or  devised.  I  have 
been  thus  particular  in  transcribing  these  statutory  definitions  of 
"  expectant  estates,"  to  show,  what  is  apparent,  that  they  are  not 
in  the  least  applicable  to  the  case  under  consideration.1  Though,  as 
Chancellor  Walworth  said  in  7  Paige,  76:  "  They  include  every 
present  right  and  interest,  either  vested  or  contingent,  which  may 
by  possibility  vest  at  a  future  day,"  yet  they  do  not  include  the 
mere  possibility  of  a  reverter,  which  the  grantor  has  after  he  has 
conveyed  in  fee  on  condition  subsequent.  He  has  no  present  right 
or  interest  whatever,  and  no  more  control  over  it  than  a  son  has  in 
the  estate  of  his  father  who  is  living.  The  provision  of  the  Revised 
Statutes,  by  which  expectant  estates  are  made  alienable,  no  doubt 
covers  the  same  class  of  interests  which,  before,  were  only  assign- 
able in  equity.     They  are  now  assignable  at  law  as  well  as  in  equity. 

Kent  says  (4  Com.  370),  that  the  grantor  of  an  estate  upon  con- 
dition has  only  a  possibility  of  reverter  and  no  reversion;  and  in  the 
note  to  page  11  of  the  same  volume  he  says,  "  there  is  only  the  pos- 
sibility of  reverter  left  in  the  grantor  and  not  an  actual  estate," 
citing  Martin  v.  Strahan,  5  Term  R.  107,  note.  For  examples  illus- 
trating the  distinction  between  a  naked  possibility  and  a  possibility 
coupled  with  an  interest,  see  4  Kent  Com.  262,  note  b,  and  Jackson 
v.  Waldrorii  13  Wendell,  178,  and  Fortescue  v.  Satterthwaite,  1  Iredell 
N.  C.  R*.  570. 

Suppose  A.  sell  to  a  banking  corporation  in  fee,  by  express  words, 
a  lot  of  land  on  which  to  build  a  banking  house.  If  the  bank  does 
not  sell  that  land,  but  retains  it  till  the  expiration  of  its  charter,  it 
will  revert  to  him,  or,  if  he  be  dead,  to  his  heirs.  Now  what  estate 
had  A.  after  he  had  conveyed  in  fee  to  the  bank?  None  whatever. 
He  had  only  a  possibility  of  a  reverter  —  a  naked  and  very  remote 
possibility,  but  nothing  that  he  could  convey  to  an  assignee.  He 
had  sold  his  entire  interest  and  received  the  full  value  of  it.  The 
presumption  was  it  would  never  return.  The  law  would  not  favor 
its  return;  and  the  grantee,  who  enjoyed  the  entire  estate  and  upon 
whose  volition  alone  it  could  return,  would  not  be  likely  to  so  far 
neglect  his  own  interests  as  to  permit  its  return.  A  voluntary 
reconveyance  would  be  hardly  more  improbable  than  a  reverter. 
Just  such  an  estate  and  no  other  had  Dederer  in  this  land  when  he 
conveyed   to  the  plaintiff.      In  both  cases,  the  estates  granted  were 

1  See  ^  49.  27-30  N.  Y.  R.  P.  L.  —  Ed. 


I.  2.]  FEES    UPON   CONDITION.  533 

upon  condition.  In  the  case  of  the  bank  the  condition  was  implied 
in  law.  Angell  &  Ames  on  Corp.  128.  In  this  case,  the  condition 
was  expressed. 

What  is  meant  by  possibilities  coupled  with  an  interest  is  of  a  very 
different  character,  as  may  be  seen  by  reference  to  4  Kent  Com.  262 
and  cases  there  cited,  and  13  Wend,  supra.  Jicklings  in  his  treatise 
on  the  analogy  between  legal  and  equitable  estates,  says,  that  under 
the  generic  term  of  possibilities  coupled  with  an  interest  may  be 
classed  all  contingent  and  executory  interests  in  land,  as  springing 
and  shifting  uses,  contingent  remainders  and  executory  devises. 

The  cases  cited  by  the  plaintiff's  counsel,  for  the  purpose  of  show- 
ing that  the  common-law  rule  has  been  changed  by  the  Revised 
Statutes,  have  no  applicability.  In  Lawrence  v.  Bayard,  7  Paige,  70, 
the  litigation  was  concerning  personal  property  only,  and  the  gen- 
eral remarks  of  the  chancellor,  as  to  the  extent  of  the  change  made 
by  the  Revised  Statutes,  I  have  already  quoted. 

Upon  the  whole,  my  conclusion  in  this  case  is,  that  the  Hudson 
and  Delaware  Railroad  Company  took  from  Dederer  a  fee  upon  con- 
dition subsequent,  that  at  the  time  of  the  conveyance  by  Dederer 
to  the  plaintiff,  there  had  been  no  forfeiture;  and  that  Dederer  had, 
at  the  time  of  such  conveyance,  no  assignable  interest  in  the 
premises. 

The  judgment  of  the  Supreme  Court  should  be  affirmed. 


UPINGTON  v.  CORRIGAN. 

151  New  York,  143.  —  1896. 

Gray,  J.  —  The  question  which  this  appeal  presents  is  both  inter- 
esting and  important  and  its  answer  turns  upon  the  construction  to 
be  given  to  the  provisions  of  our  Statute  of  Wills.  I  think,  too,  that 
there  have  been  certain  decisions  made  by  the  courts  of  this  State 
upon  the  general  question,  the  effect  of  which  it  would  be  very 
difficult  to  overlook,  however  much  inclined  we  might  feel  to  differ 
in  our  reasoning.  The  question  is,  can  the  plaintiff,  claiming  as 
heir-at-law  of  Mrs.  Davey,  maintain  this  action  to  recover  the  pos- 
session of  the  premises  in  question  for  the  breach  of  the  express  con- 
dition in  her  grant;  or  has  such  a  right  passed  under  Mrs.  Davey's 
will  to  her  residuary  legatee?  The  learned  counsel  for  the  appellant 
has  argured,  with  ability  and  with  force,  against  the  plaintiff's  right 
and  the  contention  which  he  makes  is  that  an  interest  remained  in 
the  grantor,  which,  being  descendible  to  her  heirs,  was  made  devisa- 


534      ESTATES   AS   TO  QUANTITY   AND   QUALITY.       [PT.  IV.  CH.  I. 

ble  by  the  Revised  Statutes,  and,  therefore,  passed  under  her  will. 
If  it  is  true  that  the  plaintiff  must  rest  her  right  to  enter  for  breach 
of  the  condition  upon  the  descent  of  some  estate  or  interest  left  in 
the  grantor,  then,  I  think,  the  appellant's  contention  is  right  and 
this  action  should  fail.  But  if,  on  the  other  hand,  and  as  argued 
for  the  respondents,  the  plaintiff  has  the  right  to  enter,  not  through 
the  operation  of  the  law  of  descent,  but  merely  representatively,  as 
heir-at-law,  and  the  rule  at  common  law  has  not  been  changed  by 
our  statutes,  then,  I  think,  we  will  find  ourselves  obliged  to  conclude 
that  the  devisee  of  Mrs.  Davey  was  incapable  of  possessing  a  right 
of  entry  and  that  it  belonged  solely  to  her  privies  in  blood. 

At  common  law,  the  benefit  of  such  a  condition  in  a  grant  of  real 
estate  could  be  reserved  only  to  the  grantor  and  his  heirs.  It  was 
not  considered  to  be  a  devisable  interest  in  the  grantor  and  the  right 
of  re-entry  for  a  breach  could  not  be  assigned  to  a  stranger.  It  was 
a  non-assignable  right  and  no  other  person  than  the  grantor,  or  his 
heir,  could  take  advantage  of  a  condition  which  required  a  re-entry 
in  order  to  revest  the  former  estate.  See  vol.  IV.,  Kent's  Com.  pp. 
122,  127;  Jackson  v.  Topping,  1  Wend.  388,  395;  Good  right  v.  For- 
rester, 8  East,  at  p.  566.  The  reason,  quaintly  given  in  Lord  Coke's 
Institutes,  was  that  "  under  color  thereof  pretended  titles  might  be 
granted  to  great  men,  whereby  right  might  be  trodden  down,  and  the 
weak  oppressed,  which  the  common  law  forbiddeth,  as  men  to  grant 
before  they  be  in  possession."  Coke  upon  Littleton,  §  347.  In 
Greenleaf's  Cruise  on  Real  Property,  (vol.  1,  title  13,  chap.  1,  § 
15),  the  reason  of  the  rule  is  thus  given:  "  That  it  is  a  maxim  of 
law,  that  nothing  which  lies  in  action,  entry  or  re-entry,  can  be 
granted  over;  in  order  to  discourage  maintenance."  Whatever 
criticisms  may  be  made  upon  the  reasons  for  the  rule  at  common  law, 
it  must  be  recognized  as  a  continuing  rule  of  property;  if  not  changed 
or  done  away  with  by  the  Revised  Statutes.  The  effect  of  section 
17  of  article  1  of  the  State  Constitution  was  to  retain  so  much  of  the 
common  law  of  England  as  formed  the  law  of  the  colony  of  N.  Y. 
on  the  19th  day  of  April,  1775;  where  not  repugnant  to  our  form  of 
government,  or  inapplicable  to  our  institutions,  and  subject  to  such 
alterations  as  the  Legislature  should  from  time  to  time  make.  The 
appellant,  feeling  bound  to  concede  that  the  right  of  re-entry  was 
not  devisable  at  common  law,  claims  that  the  Revised  Statutes  have 
altered  the  law,  by  the  provision  that  "  every  estate  and  interest  in 
real  property  descendible  to  heirs  may  be  devised."  2  R.  S.  57, 
§  2.  Undoubtedly,  this  language  of  the  Statute  of  Wills  is  as 
comprehensive  as  it  can  be  to  cover  real  interests;  but  we  are 
remitted,  nevertheless,  t<>  the  inquiry  whether,  here,  what  the  grantor 


I.  2.]  FEES   UPON  CONDITION.  535 

had  with  reference  to  the  estate  she  had  granted  amounted  in  law  to 
an  estate  or  interest  in  the  real  property  and  therein  lies  the  diffi- 
culty. At  common  law  it  was  only  a  possibility  of  reverter  and 
not  a  reversion.  4  Kent,  370;  Martin  v.  Strachan,  5  Term  Rep. 
107.  Until  the  happening  of  the  breach  of  the  express  condition  in 
the  deed  and  a  revesting  of  the  estate  through  re-entry,  the  whole 
title  was  in  the  grantee.  Have  the  Revised  Statutes  changed  the 
grantor's  status?  In  chapter  1,  part  2  of  the  Revised  Statutes,  upon 
the  nature,  qualities  and  alienation  of  estates  in  real  property,  article 
1  of  title  2  creates  various  estates  in  lands  and  divides  them  into 
those  in  possession  and  in  expectancy.1  The  latter  class  is  again 
divided,  first,  into  future  estates  limited  to  commence  in  possession 
at  a  future  day,  either  without  the  intervention  of  a  precedent 
estate,  or  on  the  determination  of  a  precedent  estate;  and,  second, 
into  reversions;  which  latter  are  defined  to  exist  where  the  residue 
of  an  estate  is  left  in  the  grantor,  or  his  heirs,  commencing  in  pos- 
session on  the  termination  of  a  particular  estate  granted.  By  section 
35  of  the  same  article,  it  is  also  provided  that  "  expectant  estates 
are  descendible,  devisable  and  alienable  in  the  same  manner  as  estates 
in  possession."  If,  therefore,  there  was  any  estate  left  in  Mrs. 
Davey,  upon  her  grant  to  Hughes,  it  was  one  not  known  to  our  statute 
on  real  property  and  all  expectant  estates,  within  which  class  it  would 
have  to  fall,  are  abolished  by  the  article,  except  such  as  are  therein 
defined  and  which  must  be  either  estates  limited  to  commence  in 
possession  at  a  future  day,  or  reversions.  The  real  interest  con- 
tended for  here  would  not  satisfy  the  requirement  of  either  class. 
The  mere  possibility  of  reverter,  which  was  all  there  was  in  this  case, 
could  not  be  included  within  the  "  reversions  "  spoken  of  by  the 
statute,  within  its  letter  or  spirit.  The  Statute  of  Wills,  through  the 
use  of  such  precise  words  as  "  every  estate  and  interest  in  real 
property  descendible  to  heirs,"  obviously,  must  have  reference  to 
such  as  are  recognized  by  the  Revised  Statutes  to  be  estates  of 
inheritance.  We  would  be  without  warrant  in  asserting  the  existence 
of  any  estate  in  Mrs.  Davey  in  the  premises  granted  to  Hughes, 
whether  at  common  law  or  under  the  Revised  Statutes.  She  had  an 
election  to  enter  for  condition  broken  and  she  could  release  her 
right  to  do  so.  To  those  rights  her  heirs,  after  her  decease,  suc- 
ceeded by  force  of  representation  and  not  by  descent.  There  was 
no  estate  upon  which  the  Statute  of  Descents  could  operate;  but  as 
heirs,  there  devolved  upon  them  the  bundle  or  aggregate  of  the 
rights  which  resided  in  and  survived  the  death  of  the  grantor,  their 
ancestor.     Her  legal  personalty  was  continued  in  them.      [Here  fol- 

1  See  N.  Y.  R.  P.  L.  §§  25-29;  49.  —  Ed. 


536      ESTATES   AS   TO  QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

lows  a  discussion  of  Nicoll  v.  N.  Y.  &  E.  R.  R.  Co.,  12  N.  Y.  121,  and 
cases  in  20  Barb.  455;  46  Barb.  109.  70  N  Y.  312  and  106  N.  Y.  287. J 
In  a  case  arising  in  the  courts  of  the  State  of  New  Jersey,  the  com- 
mon-law rule  in  question  was  considered  in  language  which  I  shall 
quote.  That  was  the  case  of  Southard  v.  The  Central  Railroad  Com- 
pany, 26  N.  J.  Law,  at  p.  21,  and  it  was  said:  "  If,  however,  the 
evidence  had  clearly  established  a  breach  of  the  condition,  and  a  con- 
sequent forfeiture  of  the  estate,  the  plaintiff  could  not  have  availed 
herself  of  the  forfeiture.  She  claims,  not  as  heir,  but  as  devisee  of 
the  grantor.  She  is  a  privy  in  estate,  and  not  a  privy  in  blood.  It  is 
a  rule  of  the  common  law,  that  none  may  take  advantage  of  a  con- 
dition in  deed,  but  parties  and  privies  in  right  and  representation, 
as  the  heirs  of  natural  persons  and  the  successors  of  politic  persons; 
and  that  neither  privies  nor  assignees  in  law,  as  lords  by  escheat ;  nor 
in  deeds,  as  grantees  of  reversions;  nor  privies  in  estate,  as  he  to 
whom  the  remainder  is  limited,  shall  take  benefit  of  entry  or  re-entry 
by  force  of  a  condition.  Shep.  Touch.  149;  Co.  Litt.  214a;  Lit. 
§  347;  Doct.  and  Student,  161,  ch.  20;  Perkins,  §  830;  4  Kent, 
127;  2  Cruise  Dig.  ch.  2,  §  49."  See,  also,  upon  this  subject, 
Schulenberg  v.  Harriman,  21  Wall.  44,  and  Ruch  \ .  Rock  Island,  97 
U.  S.  693. 

In  this  case,  as  it  is  in  every  case  of  a  deed  of  the  fee  upon  con- 
dition subsequent,  the  grantor  parted  with  every  interest  and  estate 
in  the  real  property  conveyed.  That  was  her  intention,  within  the 
legal  presumption  from  the  terms  of  the  deed,  and  it  was,  also, 
the  legal  presumption  that  the  condition  would  be  performed  by  the 
grantee.  That  which  the  grantor  retained  was  never  regarded  as  an 
interest  in  real  property,  or  as  an  assignable  chose  in  action,  and 
cannot  be  deemed  such  through  any  construction  of  our  statute. 
Until  the  law  is  changed  by  some  legislation,  it  must  be  regarded  as 
still  the  settled  rule  that  no  one  can  take  advantage  of  the  breach  of 
a  condition  subsequent,  annexed  to  the  grant  of  a  fee,  but  the  grantor 
or  his  heirs;  or,  in  the  case  of  an  artificial  person,  its  successors. 
Every  estate  and  interest  formerly  enjoyed  by  the  grantor  were 
vested  by  the  deed  in  the  grantee.  He  undertook  and  agreed  to 
perform  the  condition  which  is  annexed  to  the  grant,  and  the  pre- 
sumption was  that  he  would  perform.  If  he,  or  those  who  suc- 
ceeded in  interest,  failed  to  do  so  within  a  reasonable  time,  then  it 
be<  ame  optional  with  the  grantor  to  enter  for  a  breach  of  the  con- 
dition and  to  have  a  forfeiture  of  the  estate  declared.  The  grantor 
having  died,  the  right  to  insist  upon  a  forfeiture  for  breach  of  the 
condition  remained  in  the  heir,  as  the  person  who  occupies  the 
place  of  the  deceased. 


I.  2.]  FEES    UPON   CONDITION.  537 

The  further  point  is  made  by  the  appellants  that  if  the  clause  in 
the  deed  to  Hughes  created  a  condition  subsequent,  it  could  not  be 
broken  after  his  death,  as  there  was  no  mention  therein  of  his  heirs, 
executors  or  assigns.  I  do  not  think,  upon  reading  the  whole  of  the 
habendum  clause  in  the  deed,  that  we  can  say  that  the  condition 
amounted  only  to  a  personal  covenant  with  the  grantor.  The 
language  is,  "  to  have  and  to  hold  the  .  .  .  premises  . 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  to  his 
and  their  own  proper  use,  etc.,  forever,  upon  the  conditions  follow- 
ing, to  wit:  That  said  party  of  the  second  part  shall  consecrate,  or 
cause  to  be  consecrated,  the  said  property  for  the  purpose  of  erect- 
ing a  church  building,"  etc.  The  intention  seems  plain  that  the  con- 
veyance of  the  estate  was  upon  condition,  and  I  do  not  think  that 
the  construction  is  permitted  that  it  was  a  mere  covenant  on  the 
part  of  the  grantee,  personal  to  him.  The  condition  was  one  which, 
in  its  nature,  was  so  annexed  to  the  conveyance  by  the  deed  as  to 
qualify  it.  2  Wash.  Real  Prop.  *p.  455.  The  language  does  not 
provide  that  the  party  of  the  second  part,  alone,  shall  consecrate, 
but  that  he  shall  cause  to  be  consecrated  the  property,  and,  there- 
fore, it  was  within  his  power,  if  he  did  not  do  so  himself,  to  provide, 
in  any  disposition  which  he  made  of  it,  that  his  successors  in  interest 
should  do  so.  They  took  the  estate  with  knowledge  of  the  condition 
affecting  its  title  and  cannot  complain  if  bound  by  it.  It  seems  to 
me  that  the  natural  and  ordinary  interpretation  of  the  habendum 
clause  is  to  create  a  condition  subsequent,  as  the  effect  of  which,  in 
case  of  a  failure  to  perform  it,  within  a  reasonable  time,  on  the  part 
of  Hughes,  or  his  heirs  or  assigns,  the  estate  granted  might  be 
defeated,  at  the  option  of  Mrs.  Davey,  or  her  heirs.  The  language 
of  the  clause  is  not  merely  descriptive  of  the  consideration  upon 
which  the  deed  was  given;  but  qualified  the  conveyance  to  the 
extent,  or  in  the  manner  named.  Considering  the  purpose  of  the 
grant  by  Mrs.  Davey,  we  could  not  with  reasonableness  of  construc- 
tion say  that  the  condition  she  imposed  was  merely  personal  to  Arch- 
bishop Hughes. 

A  careful  consideration  of  these  questions,  and  no  other  require 
discussion  here,  must  lead  us  to  the  conclusion  that  the  appeal  can- 
not be  sustained. 

Judgment  affirmed. 


538      ESTATES   AS   TO   QUANTITY   AND    QUALITY.      [PT.  IV.  CII.   I. 

TRYON  v.  MUNSON. 

77  Pennsylvania  State,  250.  —  1374. 

Ejectment  by  Tryon  and  others  claiming  under  the  heirs  of 
James  Wilson,  deceased,  against  Munson  and  others,  claiming  the 
property  under  and  by  virtue  of  a  sale  on  foreclosure  of  a  mortgage 
given  by  said  Wilson.  Judgment  below  for  defendants.  Plaintiffs 
bring  error. 

Agnew,  Ch.  J.,  [after  disposing  in  defendants'  favor  of  several 
other  questions.] — The  last  question  and  the  most  important  is, 
whether  the  title  of  the  heirs  of  Judge  Wilson  was  extinguished  by 
the  sale?  This  depends  on  the  view  which  the  law  takes  of  the 
mortgage,  as  a  mere  debt  or  as  an  estate  in  the  land.  The  position 
of  the  plaintiff  is,  that  the  descriptive  lists  of  the  tracts  or  subject 
of  the  mortgage  being  omitted  in  recording  the  mortgage,  it  is  to 
be  viewed  as  an  unrecorded  mortgage  in  its  effect  upon  the  estate 
of  the  heirs,  and  that  as  a  debt  its  lien  had  expired  under  the  opera- 
tion of  the  Act  of  1797.  Nice's  Appeal,  4  P.  F.  Smith,  200,  is 
referred  to.  If  it  be  conceded  that  the  mortgage  is  merely  evidence 
of  a  debt,  and  conveys  no  estate  in  the  land  to  the  mortgagee,  it 
must  be  admitted  that  the  lien  of  the  debt  was  gone  when  this  pro- 
ceeding took  place,  and  that,  according  to  the  doctrine  of  Bailey  v. 
Bowman,  6  W.  &  S.  118,  and  other  cases,  the  title  of  the  heirs  was 
not  extinguished.  We  are,  therefore,  cast  upon  the  decisions  in 
this  State  to  ascertain  the  nature  and  effect  of  a  mortgage.  That 
the  debt  secured  by  it  is  personal  in  its  nature  and  qualities  of  trans- 
mission is  undoubted.  Ownership  of  the  debt  carries  with  it  that  of 
the  mortgage;  and  its  assignment  or  succession  in  the  event  of 
death,  vests  the  right  to  the  mortgage  in  the  assignee  or  the  per- 
sonal representative  of  the  deceased  owner.  But  there  is  a  manifest 
difference  between  the  debt,  which  is  a  mere  chose  in  action,  and 
the  land  which  secures  its  payment.  Of  the  former  there  can  be  no 
possession,  except  that  of  the  writing,  which  evidences  the  obligation 
to  pay;  but  of  the  latter,  the  land  or  pledge,  there  may  be.  The 
debt  is  intangible,  the  land  tangible.  The  mortgage  passes  to  the 
mortgagee  the  title  and  right  of  possession  to  hold  till  payment  shall 
be  made.  He  may,  therefore,  enter  at  pleasure,  and  take  actual 
possession — use  the  land  and  reap  its  profits.  Now  this  title  or 
lawful   right  to  possess,  and   actual  pedis  possession  are  not  ideal   or 

<  ontemplative  merely,  but  are  real  and  tangible.      True,  the  right  is 

<  onditimial,  and  will  cease  mi  payment  of  the  debt;  but  until  the  con- 
dition  is  performed,  the  title  and  possession  are  as  substantial  and 


I.  2  ]  FEES    UPON   CONDITION.  539 

real  as  though  they  were  absolute.  The  evidence  of  this  is  that  the 
mortgagee  may  dispossess  and  hold  out  the  mortgagor  until  he  per- 
forms the  condition,  or  until  the  perception  of  the  profits  reaches  the 
same  result.  Thus  we  perceive  an  interest  or  estate  in  the  land 
itself,  capable  of  enjoyment,  and  enabling  the  mortgagee  to  grasp 
and  hold  it  actually,  and  not  a  mere  lien  or  potentiality,  to  follow 
it  by  legal  process  and  condemn  it  for  payment.  The  land  passes 
to  the  mortgagee  by  the  act  of  the  party  himself,  and  needs  no  legal 
remedy  to  enforce  the  right.  But  a  lien  vests  no  estate,  and  is  a 
mere  incident  of  the  debt,  to  be  enforced  by  a  remedy  at  law,  which 
may  be  limited.  It  is  true,  if  the  mortgagee  be  held  out,  he  may 
have  to  resort  to  ejectment,  but  this  is  to  avoid  a  conflict,  and  the 
statutory  penalties  for  forcible  entry,  for  otherwise  he  may  take 
peaceable  possession,  and  is  not  liable  as  a  trespasser.  The  differ- 
ence between  title  by  deed,  and  a  lien  by  law,  is  clear,  and  hence  the 
former  is  not  governed  by  the  rules  which  apply  to  the  latter.  The 
title  by  deed,  which  is  good  against  the  mortgagor,  is  necessarily 
good  against  the  heirs,  who  are  mere  volunteers,  and  take-the  place 
of  the  ancestor.  But  a  lien  by  law  is  a  mere  incident  to  the  debt, 
which  may  be  limited  by  the  law  in  its  recovery  from  a  descended 
estate.  In  the  former  case,  death  makes  no  change  in  the  title 
conveyed ;  in  the  latter,  it  brings  into  operation  a  law  specially  appli- 
cable to  the  descended  estate.  That  these  are  the  principles  govern- 
ing the  law  of  mortgage  is  evidenced  by  numerous  decisions.  Thus 
in  Levine  v.  Will,  i  Dallas,  430,  it  was  held  that  the  Act  of  28th  of 
May,  1715,  enacting  that  no  mortgage  or  defeasible  deed  shall  be 
good  or  sufficient  to  convey  or  pass  a  freehold  of  inheritance  or  less 
estate,  unless  it  be  acknowledged,  proved  and  recorded  within  six 
months,  does  not  avoid  an  unrecorded  mortgage  as  against  the  mort- 
gagor. C.  J.  McKean  said:  "  We  think  it  is  sufficient  against  John 
Levine  (the  mortgagor)  that  the  deed  so  far  is  sufficient  to  pass  the 
lands,  and  that  under  it  the  possession  of  the  premises  might  be 
recovered  in  ejectment."  As  to  the  right  to  maintain  ejectment, 
and  that  the  remedy  by  scire  facias  is  not  exclusive,  see  also  Smith  v. 
SJuder,  12  S.  &  R.  240;  Fluck  v .  Replogle,  1  Harris,  405;  and  Martin 
v.  Jackson,  3  Casey,  504.  A  mortgage  acknowledged  before  and 
recorded  by  officers  whose  commissions  had  become  void  by  the 
Declaration  of  Independence,  was  held  to  be  good  against  a  subse- 
quent judgment-creditor  and  purchaser  at  sheriff's  sale,  who  had 
notice.  Parker  v.  Wood,  1  Dallas,  436.  So  a  scire  facias  on  a  mort- 
gage not  recorded  according  to  law,  was  held  to  be  good  against  a 
purchaser  with  notice  Stroud  v.  Lockart,  4  Dallas,  153.  In  Semple 
v.  Burd,  7  S.  &  R.  291,  Judge  Duncan  gives  the  true  reason  why  an 


540      ESTATES   AS    TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

unrecorded  mortgage  is  good  against  the  mortgagor,  because,  he 
said,  "  it  injured  no  one,  affected  not  the  rights  of  any  third  person, 
and  was  binding  on  the  man  who  executed  it  as  a  mortgage."  That 
an  estate  passes  by  a  mortgage  which  descends  to  the  heir,  is  dis- 
tinctly asserted  in  Simpsons  Lessee  v.  Amnions,  i  Binn.  175.  "  As  to 
the  second  point,"  says  C.  J.  Tilghman,  "the  legal  estate  in  the 
two-thirds,  conveyed  to  Marshall  (the  mortgagee),  descended  on  his 
death  to  his  heirs;  but  the  mortgage  being  in  effect  only  a  security 
for  a  debt  due  to  the  estate  of  Marshall,  his  heirs  were  trustees  for 
the  benefit  of  the  administrators,  who  were  entitled  to  the  debt.  It 
was  determined  in  Kennedy  v.  Fury,  1  Dallas,  72,  that  a  certain  cestui 
que  trust  may  support  an  ejectment  in  his  own  name."  This  case 
also  explains  the  theory  of  the  action  of  the  personal  representative, 
which,  as  the  Chief  Justice  states,  is  founded  on  the  want  of  a  court 
of  chancery  in  this  State.  The  Manufacturers'  and  Mechanics'  Bank 
v.  Bank  of  Pennsylvania,  7  W.  &  S.  335,  affords  another  illustration 
of  the  character  of  a  mortgage  as  an  estate.  There  the  mortgage 
was  imperfectly  recorded,  and  was  not  good  as  a  lien  against  subse- 
quent judgment-creditors,  but  it  was'  held  good  as  against  a  second 
mortgagee,  with  notice  of  it,  whose  lien  was  prior  to  the  judgments, 
and  the  money  was  therefore  awarded  to  the  first  mortgagee. 
Another  test  is  found  in  Scott  v.  Fields,  7  Watts,  360,  in  which  it 
was  decided  an  action  of  debt  will  not  lie  on  a  mortgage  containing 
no  express  covenant  to  pay  the  debt.  In  Philips  v.  The  Bank  of 
Letuistotvn,  6  Harris,  394,  Justice  Lewis  treats  both  the  mortgage  and 
assignment  of  it  as  formal  conveyances  of  the  land.  Judge  Strong 
states  the  principles  governing  mortgages  more  at  large  and  very 
clearly.  Brittons  Appeal,  9  Wright,  172.  He  says  "that  mort- 
gages are  sales,  and  that  they  must  be,  therefore,  within  this  doc- 
trine, is  shown  by  many  cases.  Mortgagees  are  purchasers  as 
between  each  other;  i.  e.,  a  subsequent  mortgage  recorded  is  post- 
poned to  a  prior  mortgage  unrecorded,  of  which  the  second  mortgagee 
had  notice.  They  are  purchasers  as  against  subsequent  purchasers 
absolutely,  with  notice.  They  are  purchasers  under  powers  to  sell. 
They  are  within  the  recording  acts  as  to  assignments  of  the  same 
security  to  different  parties.  They  are  in  form  defeasible  sales,  and 
in  substance  grants  of  specific  security,  or  interests  in  land  for  the 
purpose  of  security.  Ejectment  may  be  maintained  by  a  mortgagee, 
or  he  may  hold  possession  on  the  footing  of  ownership,  with  all  its 
incidents.  And  though  it  is  often  decided  to  be  a  security  or  lien, 
yet  so  far  as  it  is  necessary  to  render  it  effective  as  a  security,  there 
is  always  a  recognition  of  the  fact  that  it  is  a  transfer  of  the  title." 
Mortgagees,  he  observes,  have  rights  both  as  grantees  and  lien-hold- 


I.  2.]  FEES    UPON   CONDITION.  541 

ers;  and  their  rights  as  grantees  are  not  forbidden  by  the  Act  of 
1820,  which  touches  the  lien  only,  and  not  the  estate.  The  same 
key  unlocks  the  question  before  us.  The  lien  of  the  debt,  under  the 
Act  of  1797,  was  gone  against  the  general  estate  of  Judge  Wilson; 
but  the  special  estate,  granted  by  him  in  the  mortgage,  remained 
and  preserved  the  debt  against  it.  This  effect  might  be  seen  in  the 
case  of  a  mortgagee  in  possession  at  the  death  of  a  mortgagor. 
Clearly,  the  lapse  of  time  would  not  oust  him,  if  his  debt  were 
unpaid.  He  could  hold  the  land  until  the  heirs  tendered  payment, 
or  his  debt  was  made  out  of  the  profits.  The  proceeding  by  scire 
facias  against  the  administrators  was  valid,  and  the  judgment 
being  before  the  Act  of  1834,  bound  the  heirs.  Probably  the  case 
would  be  different  since  the  passage  of  that  act,  and  the  heirs  would 
be  permitted  to  make  the  same  defense  to  the  ejectment  which  they 
might  have  set  up  to  the  scire  facias,  if  they  had  been  served. 
Wallace  v.  Blair,  1  Grant,  75 ;  Murphy  s  Appeal,  8  W.  &  S.  165 ; 
Benner  v.  Phillips,  9  W.  &  S.  13;  Atherton  v.  Atherton,  2  Barr.  112. 
Even  an  irregularity  in  the  proceeding,  as  a  judgment  upon  one 
return  of  nihil,  has  been  held  not  to  affect  the  purchaser  at  the 
sheriff's  sale.  The  effect  of  the  sale  is  to  transfer  the  estate  to  the 
purchaser  as  fully  as  it  existed  in  the  mortgagor  at  the  time  of 
the  mortgage.  Hartman  v.  Ogbom,  4  P.  F.  Smith,  120.  The  sale 
in  this  case,  therefore,  extinguished  the  title  of  the  heirs,  notwith- 
standing the  great  lapse  of  time  from  the  death  of  Judge  Wilson  until 
the  proceeding  upon  the  mortgages.  If  the  heirs  had  a  defense 
they  ought  to  have  gone  into  court  and  asked  the  judgment  to  be 
opened  to  let  them  into  a  defense.  The  judgment  was  final,  and 
bars  any  defense  which  existed  before  it  was  rendered.  Though 
the  jurisdiction  of  the  court  may  not  be  denied,  as  we  have  seen, 
because  of  an  omission  of  part  of  the  instrument  in  recording  it,  it 
may  be  conceded  that  the  omission  of  a  material  part,  necessary  to 
identify  the  subject-matter,  will  reduce  the  whole  instrument  to  the 
condition  of  an  unrecorded  mortgage  in  its  effect  upon  the  estate  of 
the  heirs.  In  this  view,  JVice's  Appeal,  4  P.  F.  Smith,  200,  is  relied 
on  by  the  plaintiffs  in  support  of  their  position.  But  that  case  con- 
cedes the  effect  of  an  unrecorded  mortgage  upon  the  estate  as  against 
the  mortgagor  and  his  heirs,  and  only  denies  to  it  a  higher  place  as 
against  creditors  than  that  of  a  specialty  debt,  in  a  distribution  pro- 
ceeding, after  a  conversion  of  the  property  through  an  Orphans'  Court 
sale.  It  is  there  shown  that  to  allow  it  precedence  over  the  general 
debts  of  a  decedent,  which  are  fixed  in  position  by  law  at  death, 
would  disturb  the  harmony  of  the  system  relating  to  the  estates  of 
decedents  and  the  payment  of  the  debts.     In  this  case,  the  simple 


542      ESTATES   AS   TO   QUANTITY    AND    QUALITY.      [PT.  IV.  CH.  I. 

question  is,  whether  the  mortgage,  considering  it  as  unrecorded, 
could  be  enforced  against  the  heirs  of  James  Wilson?  After  a  full 
consideration  of  the  assignments  of  error,  we  find  none  which  ought 
to  reverse  the  judgment. 

Judgment  affirmed.1 


(£.)    Void  conditions  and  conditions  impossible  of  performance.'1 

BOSTICK  v.  BLADES. 

59  Maryland,  231.  —  1882. 

Alvey,  J  ,  delivered  the  opinion  of  the  court.  —  *  *  * 
It  would  seem  to  be  well  settled  by  a  great  number  of  adjudica- 
tions both  in  England  and  in  this  country,  that  conditions  in  general 
restraint  of  marriage,  whether  of  man  or  woman,  as  a  general  rule, 
are  regarded  in  law  as  being  against  public  policy,  and  therefore 
void.  But  this  rule  has  never  been  considered  as  extending  to 
special  restraints,  such  as  against  marriage  with  a  particular  person, 
or  before  attaining  a  certain  reasonable  age,  or  without  consent. 
Nor  has  it  ever  been  extended  to  the  case  of  a  second  marriage  of  a 
woman;  but  in  all  such  cases  the  special  restraint  by  condition  has 
been  allowed  to  take  effect,  and  the  devise  over  held  good,  on  breach 
of  the  condition.  A  condition,  therefore,  that  a  widow  shall  not 
marry,  is,  by  all  the  authorities,  held  not  to  be  unlawful.  Scott  v. 
Tyler,  2  Dick.  712;  Jordan  v.  Holkham,  Amb.  209;  Barton  v.  Barton, 
2  Vern.  308;  2  Pow.  on  Dev.  283;  O'JVea/e  v.  Ward,  3  H.  &  McH. 
93;  Binnerman  v.  Weaver,  8  Md.  517;  Gough  and  Wife  x.  Manning, 
26  Md.  347;  Clark  v.  Tennison,  7>Z  Md.  85. 

In  the  cases  a  distinction  is  taken  between  those  where  the  restraint 
is  made  to  operate  as  a  condition  precedent,  and  those  where  it  is 
expressed  to  take  effect  as  a  condition  subsequent;  and  the  decisions 
have  generally  been  made  to  turn  upon  the  question,  whether  there 
be  a  gift  or  devise  over  or  not.  But  if  the  gift  or  devise  be  to  a  per- 
son until  he  or  she  shall  marry,  and  upon  such  marriage  then  over, 
this  is  a  good  limitation,  as  distinguished  from  condition;  as  in  such 
case  there  is  nothing  to  carry  the  interest  beyond  the  marriage. 
There  can  be  no  doubt,  therefore,  that  marriage  may  be  made  the 
ground  of  a  limitation  ceasing  or  commencing;  and  this  whether  the 

'  See  also  Lain-  v.  King,  p.  197,  supra,  for  another  illustration  of  the  common- 
law  view  '•!  ,1  mortgage.  —  Ed. 

*See  pp.  561,  infra,  for  cases  on  conditions  held  void  as  unreasonably 
re  traini  ng  al  ienation,  —  Ed. 


I.  2.]  FEES    UPON   CONDITION.  543 

devisee  be  man  or  woman,  or  other  than  husband  or  wife.  Morley 
v.  Rennoldson,  2  Hare,  570;  Webb  v.  Grace,  2  Phill.  701;  Arthur  v. 
Cole,  56  Md.  100. 

In  this  case,  if  the  devise  to  the  husband  had  depended  alone  upon 
the  terms  of  the  first  part  of  the  devise,  that  is  to  say,  the  terms 
"  to  have  and  to  hold  to  him  for  and  during  the  term  or  period  after 
my  death  that  he  shall  remain  unmarried,'  there  could  be  no  doubt 
it  would  have  been  a  good  limitation,  and  the  estate  devised  to  him 
would  have  terminated  upon  his  second  marriage.  But  we  must 
read  the  whole  clause  together,  and  take  one  part  in  connection  with 
the  other,  and  so  reading  the  terms  of  the  devise,  the  terms  that 
follow  those  just  recited  clearly  put  the  devise  in  the  form  of  a  con- 
dition subsequent.  The  estate  is  given  to  the  husband  for  life,  but 
in  the  event  of  his  second  marriage  it  is  devised  over  to  the  brother 
of  the  testatrix;  or,  in  other  words,  the  devise  is  to  the  husband  for 
life,  subject  to  a  defeasance  in  the  event  of  a  second  marriage.  By 
the  terms  of  this  devise  a  vested  estate  passed  to  the  husband  for  a 
definite  duration,  but  by  the  happening  of  the  event  that  was  con- 
templated as  possible,  the  estate,  according  to  the  contention  of  the 
plaintiff,  became  divested  and  passed  over  to  the  plaintiff. 

Now,  there  being  no  question  of  the  power  of  a  husband  to  effectu- 
ally impose  such  a  condition  in  restraint  of  a  second  marriage  of  his 
widow,  the  question  here  is,  whether  a  wife  by  a  devise  or  gift  to 
her  husband  can  effectually  impose  a  like  condition  in  restraint  of  his 
second  marriage.     *     *     * 

In  the  courts  of  England  the  direct  question  here  presented  does 
not  appear  to  have  arisen  until  very  recently.  In  1875  the  case  of 
Allen  v.  Jackson,  L.  R.  19  Eq.  Cases,  631,  was  decided  by  Vice- 
Chancellor  Hall.  In  that  case,  the  testatrix  gave  the  income  of  cer- 
tain property  to  her  niece  (who  was  her  adopted  daughter)  and  the 
husband  of  the  niece  during  their  joint  lives,  and  to  the  survivor 
during  his  or  her  life,  with  a  proviso  that  if  the  husband  survived 
his  wife  and  married  again,  the  property  should  go  over.  The  hus- 
band survived  the  wife  and  married  again;  and  the  vice-chancellor 
held,  that  the  attempted  defeasance  of  the  husband's  life  interest, 
was  void  as  a  condition  subsequent  in  restraint  of  marriage.  He 
said  he  could  not  hold  the  law  to  be  the  same  as  to  the  second  mar- 
riage of  a  man  as  it  is  to  the  second  marriage  of  a  woman.  That  the 
law  as  regards  the  second  marriage  of  a  woman  is  exceptional,  and 
that  he  did  not  think  he  could  extend  the  exception  to  the  case  of  a 
man. 

That  case  was  taken  into  the  Court  of  Appeal  (1  Ch.  Div.  399), 
where  it  was  fully  argued  upon  all  the  principal  authorities,  before 


544      ESTATES   AS   TO  QUANTITY    AND    QUALITY.      [PT.   IV.   CH.  I. 

the  Lord  Justices,  James,  Mellish  and  Baggallay;  and  upon  full  con- 
sideration, they  all  concurred  in  holding  that  the  proviso  was  valid 
as  a  condition,  and  that  the  gift  over  took  effect;  and  consequently 
reversed  the  judgment  of  the  vice-chancellor. 

Lord  Justice  James  reasoned  the  matter  upon  principle;,  and  he 
said  that  as  there  was  no  statute  or  express  decision  of  any  court  to 
the  effect,  that  there  is  any  distinction  whatever  between  the  second 
marriage  of  a  woman  and  the  second  marriage  of  a  man,  he  was 
unable  to  see  any  principle  whatever  upon  which  the  distinction 
could  be  drawn  between  them.  He  then  shows  to  what  injustice 
and  hardship  the  distinction  would  lead.  In  the  case  of  a  widow,  he 
said,  it  has  been  considered  to  be  very  right  and  proper  that  a  man 
should  prevent  his  widow  from  marrying  again;  and  after  stating 
the  probable  reasons  for  the  rule,  he  proceeds  to  show  with  what 
reason  and  force  they  apply  to  the  case  of  a  gift  or  devise  to  a  man 
with  condition  that  he  should  not  marry  again.  Suppose,  he  said, 
"  we  had  the  case  of  a  married  woman  having  property  which  she 
had  power  to  dispose  of  by  her  will,  and  she  left  it  to  her  husband 
by  reason  of  his  being  the  widower,  and  for  the  purpose  of  enabling 
him  to  perform  his  duties  properly  as  the  head  of  the  family  which 
she  may  have  left;  it  would  be  monstrou£  to  say  that  when  she  pro- 
vided for  the  contingency  of  the  husband  marrying  a  second  time, 
and  having  a  new  wife  and  a  new  family,  she  should  not  be  able  to 
say,  '  In  that  case  he  is  to  lose  the  estate,  and  it  is  to  go  over  for 
the  benefit  of  my  children.'  "  "  In  this  particular  case,"  speaking 
of  the  case  before  him,  "  it  was  not  the  wife  who  was  doing  it,  but 
it  was  a  person  who  places  herself  in  the  position  of  the  wife  —  the 
wife's  mother  —  and  who  says,  making  a  provision  for  her  adopted 
daughter,  that  she  gives  her  the  income  of  her  property  for  her  life, 
and  then  gives  it,  after  her  death,  to  her  surviving  husband,  evi- 
dently in  his  character  of  widower,  with  a  declaration  that  if  he 
should  marry  again  it  should  go  over  to  the  child  of  the  daughter 
who  was  the  first  object  she  intended  to  provide  for  —  a  most 
reasonable  and  proper  provision,  with  respect  to  which  it  seems 
impossible  to  suggest  that  there  is  any  ground  of  public  policy 
against  it." 

In  the  reasoning  of  Lord  Justice  Mellish  he  was  equally  explicit  in 
holding  the  condition  against  the  second  marriage  of  the  husband 
valid,  and  the  gift  over  on  breach  of  the  condition  effectual.  And 
in  the  concurring  opinion  of  Justice  Baggally,  the  present  state  of 
the  English  law  upon  the  subject  is  summed  up  and  stated  with 
admirable  clearness.  He  says:  "  Now  the  present  state  of  the  law 
as  regards  conditions  in  restraint  of  the  second  marriage  of  a  woman 


I.  2.]  FEES    UPON   CONDITION.  545 

is  this,  that  they  are  exceptions  from  the  general  rule  that  con- 
ditions in  restraint  of  marriage  are  void,  and  the  enunciation  of  that 
law  has  been  gradual.  In  the  first  instance,  it  was  confined  to  the 
case  of  the  testator  being  the  husband  of  the  widow.  In  the  next 
place,  it  was  extended  to  the  case  of  a  son  making  the  will  in  favor 
of  his  mother.  That,  I  think,  is  laid  down  in  GodolpJii?i  s  Orphans 
Legacy,  p.  45.  Then  came  the  case  before  Vice-Chancellor  Wood  of 
Newton  v.  Marsden,  2  J.  &  H.  356,  in  which  it  was  held  to  be  a  gen- 
eral exception  by  whomsoever  the  bequest  may  have  been  made. 
Now  the  only  distinction  between  those  cases  and  the  present  case 
is  this  —  that  they  all  had  reference  to  the  second  marriage  of  a 
woman,  and  this  case  has  reference  to  the  second  marriage  of  a 
man;  but  no  case  has  been  cited  in  which  a  condition  has  been  held 
to  be  utterly  void  as  regards  the  second  marriage  of  a  man;  and 
following  the  analogy  of  the  other  cases,  there  seems  no  reason  at 
all  why  a  distinction  should  be  drawn  between  the  two  sexes  as 
regards  this  matter.  It  appears  to  me  that  this  condition  is  one 
which  may  fairly  be  treated  as  valid,  and  I  think  so  the  more  for  this 
reason.  Here  is  a  gift  in  favor  of  a  man,  which,  if  he  is  not  deprived 
of  it  on  the  occasion  of  his  second  marriage,  he  may  very  probably 
or  very  possibly  settle  upon  a  second  wife,  and  altogether  deprive 
the  original  family,  which  was  the  object  of  the  testatrix's  bounty." 
We  have  thus  stated  somewhat  at  large  the  reasoning  of  that  case, 
because  of  the  entire  absence  of  any  direct  authority  in  our  own 
courts;  and  the  conclusion  of  the  Court  of  Appeal,  founded  as  it  is 
upon  such  cogent  reason,  and  deduced  from  the  principles  of  the 
common  law,  commends  itself  strongly  to  our  assent.  In  the  absence 
of  any  binding  authority  to  the  contrary,  we  are  of  opinion  that  there 
is  no  good  and  substantial  ground  for  maintaining  a  distinction 
between  a  condition  imposed  in  restraint  of  a  second  marriage  of  a 
woman  and  a  like  condition  in  restraint  of  a  second  marriage  of  a 
man.  As  the  one  is  valid  and  effectual,  so  is  the  other;  and  we, 
therefore,  hold  that  the  devise  over  to  the  plaintiff  in  this  case,  on 
breach  of  the  condition  by  the  defendant,  is  valid,  and  that  the 
plaintiff  is  entitled  to  recover.     *     *     * 

Judgment  affirmed. 

LAW   OF   PROP.    IN   LAND  —  35 


546      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

HOGAN  v.  CURTIN. 

88  New  York,  162.  —1882. 

Andrews,  Ch.  J.  — We  do  not  deem  it  essential  to  determine  the 
question  which  has  been  argued  at  the  bar,  whether  the  condition 
in  abridgment  of  the  legacy  to  the  daughter,  in  case  of  her  marriage 
without  consent,  is  precedent  or  subsequent,  as  we  are  of  opinion 
that,  while  in  some  cases  this  would  be  a  controlling  consideration, 
in  this  case  the  same  result  will  follow  either  construction.  But  we 
think  the  condition  was  subsequent.  The  gift  to  the  daughter  in 
the  fourth  clause  is  immediate,  but  the  payment  is  postponed  until 
she  shall  attain  the  age  of  twenty-one  years,  with  a  provision  for  the 
acceleration  of  the  payment  on  her  marriage  with  consent  before  that 
age,  and  a  gift  over  by  way  of  substitution  to  the  sons,  in  case  of 
the  daughter's  dying  unmarried  during  her  minority,  and  a  revoca- 
tion of  the  gift  to  the  daughter,  except  as  to  the  sum  of  $5,000  in 
case  of  her  marriage  before  twenty-one,  without  consent.  The  time 
is  annexed  to  the  payment  and  not  to  the  gift.  In  Garret  v.  Pritty, 
2  Vern.  293,  more  fully  reported  in  a  note  to  Lloyd  v.  Branton,  3 
Mer.  118,  the  will  contained  a  provision  similar  to  that  in  the  will  in 
question.  In  that  case  the  testator  bequeathed  to  his  daughter, 
Elizabeth,  ^3,000,  to  be  paid  in  manner  following-  ,£2,000  when 
she  should  attain  the  age  of  twenty-one,  or  upon  the  day  of  her  mar- 
riage, which  should  first  happen,  etc.,  and  ,£1,000  at  the  end  of  two 
years,  etc.,  and  the  will  provided  that  in  case  the  daughter  should 
be  married  before  she  attained  the  age  of  twenty  one  without  con- 
sent, etc.,  then  the  legacy  of  ,£3,000  before  given  to  her  should  cease 
and  be  void,  and  in  lieu  thereof,  the  testator  gave  her  ,£500  only. 
In  Harvey  v.  Aston,  1  Atk.  378,  Lord  Chief  Justice  Lee,  referring  to 
Garret  v.  Pritty,  said:  "In  the  case  of  Garrett  v.  Pritty,  the 
portion  was  plainly  a  vested  portion,  and  the  proviso  comes  in 
afterward  and  is  to  be  considered  as  a  condition  subsequent."  In 
Graydon  v.  Hicks,  2  Atk.  16,  the  will  was,  "  I  give  the  sum  of  one 
thousand  pounds  to  my  only  daughter,  Mary  Graydon.  to  be  paid  to 
her  at  her  age  of  twenty-one  years,  or  on  the  day  of  her  marriage, 
which  shall  first  happen,  provided  she  marry  by  and  with  the  consent 
of  my  executor,  but  in  case  she  dies  before  the  money  becomes  pay- 
able on  the  condition  aforesaid,  then  I  give  the  said  one  thousand 
pounds  equally  between  my  two  youngest  sons,"  etc.,  and  Lord 
Hardwiekc  said  that  he  was  of  opinion  that  this  is  only  a  condition 
subsequent,  to  divest  a  legacy  in  case  of  a  marriage  before  twenty- 
>ne.     It  may  be  observed  that  in  the  present  case  the  words  "  here- 


I.  2.]  FEES    ON    CONDITION.  547 

tofore  bequeathed  to  her,"  in  the  clause  providing  for  an  abridgment 
of  the  legacy  in  case  of  marriage  without  consent,  naturally  refer  to 
a  legacy  which  had  been  given  by  the  preceding  clause,  which,  by 
the  second  clause,  was  to  be  in  part  divested  by  a  marriage  contrary 
to  the  condition.  We  think  the  authorities  sustain  the  view  that  the 
condition  in  this  case  was  subsequent  and  not  precedent.  See  Roper 
on  Legacies,  vol.  1,  p.  554,  and  cases  cited. 

The  next  question  is,  whether  the  marriage  of  the  daughter,  under 
the  circumstances  stated,  was  a  breach  of  the  condition.  The 
language  is,  that  if  the  daughter  should  marry  "  against  the  consent 
of  my  said  executors  and  her  mother,"  etc.  The  finding  is  that  she 
married  with  the  consent  of  the  sole  executor,  but  without  the  con- 
sent of  her  mother.  It  is  claimed  that  a  marriage  without  the 
mother's  consent  is  not  a  marriage  against  her  consent.  It  was 
said  by  Lord  Hardwicke  in  Reynish  v.  Martin,  3  Atk.  334,  that  there 
was  a  material  distinction  between  a  condition  that  the  legatee 
should  not  marry  without  consent,  and  a  condition  that  she  shall 
not  marry  against  consent.  The  precise  distinction  which  Lord 
Hardwicke  had  in  mind  is  not  pointed  out.  It  could  hardly  be 
claimed  that  a  condition  not  to  marry  against  consent  could  be 
broken  only  where  there  was  an  affirmative  prohibition  of  the  mar- 
riage before  it  took  place.  Such  a  construction  would  permit  a  clan- 
destine or  secret  marriage  to  be  contracted,  without  involving  a  for- 
feiture of  the  legacy.  But  without  undertaking  to  trace  the  alleged 
distinction,  it  is  sufficient  to  say  in  this  case,  as  was  said  by  Sir  John 
Leach  in  Long  v.  Ricketts,  2  Sim.  &  Stu.  179,  that,  "  to  make  the 
will  consistent,  the  word  '  against  *  here  must  read  in  the  sense  of 
'  without.'  '  The  testator  evidently  uses  the  word  against,  in  the 
last  sentence  of  the  fourth  clause,  as  the  correlative  of  with,  in 
the  first  sentence.  In  the  first  sentence  he  gives  the  legacy,  on  the 
daughter's  marriage  before  twenty-one,  with  consent,  and  in  the 
last,  he  abridges  it  in  case  of  her  marriage  against  consent,  using  that 
word  as  the  synonym  of  without.  This  is  also  rendered  clear  by  the 
language  of  the  eighth  clause,  which  provides  for  the  daughter's 
maintenance  by  the  executors,  out  of  the  proceeds  of  the  real  estate 
until  twenty-one,  "  and  until  my  said  daughter  shall  get  married, 
with  their  consent  and   that  of  her  mother,  as  hereinbefore  stated." 

We  are  of  opinion,  therefore,  that  the  daughter's  marriage  without 
the  consent  of  her  mother,  was  a  breach  of  the  condition.  The  con- 
sent of  the  executor  alone,  was  not  sufficient  The  testator  required 
the  consent  of  both  the  mother  and  the  executors.  In  Clarke  v. 
Parker,  19  Ves.  17,  Lord  Eldon  said:  "  There  is  no  case,  in  which 
it  has  been  held,  that,  the  consent  of  three  trustees  being  required, 


548      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

that  consent,  which,  if  there  were  only  two,  would  have  been  quite 
sufficient,  would  do,  the  third  not  having  been  at  all  consulted. 
There  was  a  discretion  in  him  as  well  as  in  the  others;  and  there  is 
no  authority  that,  if  the  consent  of  three  is  required,  a  marriage 
with  consent  of  two  only  is  that  which  the  will  has  prescribed." 
The  remarriage  of  the  mother  did  not  dispense  with  the  necessity  of 
her  consent  to  her  daughter's  marriage.  The  will  does  not  provide 
that  in  the  event  of  the  mother's  marriage,  her  consent  shall  be  no 
longer  necessary.  The  testator  transferred  the  custody  and  guardian- 
ship of  his  children  to  his  executors  in  the  event  of  the  remarriage 
of  his  wife.  He  probably  deemed  it  prudent,  to  put  it  out  of  the 
power  of  a  second  husband  to  intermeddle  with  the  persons  or  estate 
of  the  children.  But  he  uses  no  language  indicating  any  intention 
to  dispense  with  the  mother's  consent  to  the  daughter's  marriage 
before  twenty-one,  in  case  the  mother  married.  Her  natural  love 
and  duty  may  well  have  been  regarded  by  the  testator  as  affording  a 
sufficient  guaranty  that  the  power  to  give  or  withhold  consent  would 
not  be  abused. 

The  condition,  therefore,  of  the  legacy  to  the  daughter  having 
been  broken  by  her  marriage  without  consent,  the  question  remains, 
whether  the  condition  is  effective  to  limit  the  legacy  to  the  sum  of 
$5,000.  If  the  question  depends  upon  the  general  rules  of  law 
applicable  to  conditions,  it  is  plain  that  the  daughter,  by  breach  of 
the  condition,  forfeited  the  primary  legacy.  A  condition  prohibiting 
marriage  before  twenty-one  without  consent,  is  by  the  common  law 
valid  and  lawful.  It  is  otherwise  of  conditions  in  general  restraint 
of  marriage,  they  being  regarded  as  contrary  to  public  policy,  and 
the  "  common  weal  and  good  order  of  society."  But  reasonable 
conditions  designed  to  prevent  hasty  or  imprudent  marriages,  and 
to  subject  a  child,  or  other  object  of  the  testator's  bounty,  to  the 
just  restraint  of  parents  or  friends  during  infancy,  or  other  reason- 
able period,  are  upheld  by  the  common  law,  not  only  because  they 
are  proper  in  themselves,  but  because  by  upholding  them  the  law 
protects  the  owner  of  property  in  disposing  of  it  under  such  lawful 
limitations  and  conditions  as  he  may  prescribe.  Story's  Eq.  Jur. 
§  2.S0  ct  set].,  and  cases  cited.  Now  it  is  the  general  rule  of  law  that 
a  breach  of  a  lawful  conditon  annexed  to  a  legacy  either  divests  it, 
or  prevents  an  estate  therein  arising  in  the  legatee,  depending  upon 
whether  the  condition  is  precedent  or  subsequent.  In  accordance 
with  tins  general  principle,  it  was  held  in  ///  re  Dickson's  Trust,  1 
Sim.  (N.  S. )  37,  that  a  condition  subsequent  that  the  legatee  should 
not  bei  ome  a  nun  was  valid,  and  that  the  legacy  was  forfeited  by 
breai  h  <>t    the  condition,  although   there  was  no  gift  over.     But  it 


I.  2.]  FEES    UPON   CONDITION.  549 

has  been  the  settled  law  of  England  for  a  long  period,  that  a  con- 
dition subsequent  annexed  to  a  legacy,  in  qualified  restraint  of  mar- 
riage, although  the  restraint  was  lawful  and  reasonable,  nevertheless 
did  not  operate  upon  breach  to  divest  the  title  of  a  legatee,  unless 
there  was  an  express  gift  over  on  breach  of  the  condition,  or  a 
direction  that  the  legacy  should  fall  into  the  residue,  and  pass  there- 
with, which  is  deemed  equivalent  to  a  gift  over.  The  condition 
where  there  is  no  devise  over,  is  said  to  be  in  terrorem  merely,  a 
convenient  phrase  adopted  by  judges  to  stand  in  place  of  a  reason 
for  refusing  to  give  effect  to  a  valid  condition.  Harvey  v.  Aston, 
supra;  Reynish  v.  Martin,  3  Atk.  330;  Wheeler  v.  Bingham,  Id.  3C4; 
Lloyd  v .  Branton,  supra;  Stackpole  v.  Beaumont,  3  Ves.  Jr.  89;  In  re 
Dickson's  Trust,  supra;  Marples  v.  Bainbridge,  1  Mad.  590.  In 
Lloyd  v.  Branton,  Sir  William  Grant,  referring  to  the  subject,  says, 
"  Whatever  diversity  of  opinion  there  may  have  been  with  respect  to 
the  necessity  of  a  devise  over  in  the  case  of  conditions  precedent,  I 
apprehend  that,  without  such  a  devise,  a  subsequent  condition  of 
forfeiture  on  marriage  without  consent  has  never  been  enforced.  "It 
is  not  necessary  to  state  at  length  the  reason  of  the  apparent 
anomaly  in  the  law  upon  the  subject.  This  is  fully  explained  in  the 
judgment  of  Lord  Thurlow,  in  Scott  v.  Tyler,  2  Bro.  Ch.  432,  and  of 
Lord  Loughborough,  in  Stackpole  v.  Beaumont.  Suffice  it  to  say,  that 
it  grew  out  of  the  adoption,  by  the  English  ecclesiastical  courts  and 
the  courts  of  equity,  of  the  rules  of  the  civil  and  canon  law,  by  which 
all  conditions  in  restraint  of  marriage  (with  very  limited  exceptions), 
or  conditions  requiring  consent,  were  held  to  be  void.  The  ecclesi- 
astical courts,  having  jurisdiction  to  enforce  the  payment  of  legacies, 
adopted  the  rule  of  the  civil  law  in  all  cases,  without  considering 
that  by  the  common  law  reasonable  conditions  in  restraint  of  mar- 
riage were  valid.  The  distinction  made  in  cases  where  there  was 
an  express  devise  over  does  not  seem  to  be  founded  upon  any  princi- 
ple, and  may  possibly  have  grown  out  of  an  effort  to  partially  restore 
the  harmony  of  the  law. 

It  is  a  clear  proposition,  therefore,  that  according  to  the  settled 
law  of  England,  the  legacy  in  this  case,  if  it  is  regarded  as  a  purely 
personal  legacy,  was  not  forfeited  by  the  marriage  of  the  testator's 
daughter  without  consent.  There  was  no  devise  over  on  breach  of 
the  condition.  The  only  gift  over  was  in  the  event  of  the  daughter's 
dying  unmarried  before  twenty-one.  It  has  been  frequently  decided 
that  a  general  gift  of  a  residue  is  not  a  gift  over  within  the  rule. 
Wheeler  v.  Bingham,  supra;  Lloyd  v.  Branton,  supra.  The  condition, 
therefore,  in  this  case  would  be  in  terrorem  only  within  the  cases 
cited. 


550      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

But  the  legacy  is  not  a  purely  personal  legacy.  The  testator 
charges  the  lands  devised  as  an  auxiliary  fund  for  the  payment  of 
debts  and  legacies,  and  there  is  no  personalty  out  of  which  the  legacy 
can  be  paid.  If  it  is  paid,  therefore,  it  can  be  only  by  a  sale  of  the 
land  on  which  the  legacy  is  charged.  This  presents  a  case  where 
the  condition  must  be  construed  and  effect  given  to  it  according  to 
the  general  rules  of  the  common  law.  Reynish  v.  Martin  was  the 
case  of  a  legacy  upon  a  condition  in  restraint  of  marriage  without 
consent,  charged  upon  land  in  aid  of  the  personalty.  The  legatee 
married  without  consent,  and  afterward  suit  was  brought  to  compel 
a  sale  of  the  land  to  pay  the  legacy,  and  Lord  Hardwicke  denied 
this  relief,  saying  that  "  where  a  legacy  is  a  charge  upon  the  lands, 
to  be  raised  out  of  the  real  estate,  as  the  ecclesiastical  courts  have 
no  jurisdiction,  it  must  be  governed  by  the  rules  of  another  fcrum, 
to  which  the  jurisdiction  properly  belongs;"  and  in  Scott  v.  Tyler, 
Lord  Thurlow  said,  "  Lands  devised,  charges  upon  it,  powers  to  be 
exercised  over  it,  money  legacies  referring  to  such  charges,  money  to 
be  laid  out  in  land  (though  I  do  not  find  this  yet  resolved),  follow  the 
rule  of  the  common  law  and  are  to  be  executed  by  analogy  to  it." 
And  Judge  Story,  speaking  of  the  distinctions  between  conditions  in 
restraint  of  marriage,  annexed  to  a  bequest  of  personal  estate,  and 
the  like  conditions  annexed  to  a  devise  of  real  estate,  or  to  a  charge 
upon  it  says:  "  In  the  latter  cases  (touching  real  estate)  the  doc- 
trine of  the  common  law,  in  respect  to  conditions,  is  strictly  applied. 
If  the  condition  be  precedent  it  must  be  strictly  complied  with  in 
order  to  entitle  the  party  to  the  benefit  of  the  devise  or  gift.  If  the 
condition  be  subsequent  its  validity  will  depend  upon  its  being  such 
as  the  law  will  allow  to  divest  an  estate."  Story's  Eq.  Jur.,  §  288; 
see,  also,  Cornells.  Lovetfs  Ex'r.,  11  Casey,  100;  Comm.  v.  Stauffer, 
10  Barr.  350;  Williams  on  Pers.  Prop.  341. 

On  the  ground,  therefore,  that  the  condition  in  this  case  was  law- 
ful, and  that  there  is  no  personal  estate  to  pay  the  legacy,  and  that 
it  cannot  be  enforced  as  a  charge  against  the  real  estate  by  reason  of 
the  breach  of  the  condition,  we  think  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


PARKER  v.  PARKER. 

123  Massachusetts,  584.  —  1878. 

Grav.  C.  J.  —  All  the  lands  of  which  partition  is  sought  were 
devised  by  David  Parker  to  Loring  Parker  upon  the  condition  subse- 
quent that   lie   should   support  George   Parker.     On    the   death  of 


I.  2.]  FEES    UPON   CONDITIONAL   LIMITATION.  55  I 

George,  in  the  lifetime  of  the  testator,  the  performance  of  the  con 
dition  became  impossible  by  the  act  of  God,  and  Loring  cannot  be 
said  to  have  neglected  or  refused  to  perform  it,  but  holds  the  lands 
by  an  absolute  title.     4  Kent  Com.  130;  Merrill  v.  Emery,  10  Pick. 

5°7,  5"« 

Petition  dismissed. 


(3.)  Fees  upon  Conditional  Limitation.1 

HATFIELD  v.  SNEDEN. 

54  New  York,  280.  —  1873. 

[Reported  herein  at  p.         .] 


d.    The  fee-conditional  of  the  common  law. 

BURNETT  v.  BURNETT. 

17  South  Carolina,  545.  —  1882. 

McIver,  J.  — The  principal  questions  in  this  case  arise  upon  the 
construction  of  a  deed  which  is  couched  in  very  informal  and  arti- 
ficial language.  Its  material  terms  are  as  follows:  "  Know  all  men 
by  these  presents  that  I,  Mark  Cantrell,  for  the  bare  affectionate 
love  I  have  to  my  daughter,  Mary  Burnett,  and  having  special  con- 
fidence in  my  brother  Lanceford  Cantrell  and  Joseph  W.  Martin  as 
trustees,  I  give  to  my  daughter  and  the  lawful  heirs  of  her  body  the 
following  property,  or  to  the  trustees  for  her  and  her  heirs'  use  and 
benefit  ninety-two  acres  of  land  lying  .  .  .  reserving  the  use  of 
the  same  during  my  life.  And  if  my  wife,  Sarah  Cantrell,  is  a  longer 
liver  than  me,  she  is  to  have  the  use  of  the  home  tract  ot  land,  for 
her  support,  and  choice  of  the  negroes  and  mares  —  two  cows  and 
other  household  and  kitchen  furniture,  as  my  trustees  for  my 
daughter  and   her  lawful  heirs  think  proper,  during  life  or  widow- 

1  For  the  various  uses  of  the  term  "  conditional  limitation."  see  note  to  §  22 
of  Gray's  "  Restraints  on  Alienation."  It  seems,  on  the  whole,  best  that  the 
phrase  should  be  used  as  a  generic  term  covering  shifting  uses  and  shifting 
executory  devises.  This  is  the  sense  in  which  we  find  it  used  in  the  N.  Y.  Real 
Prop.  Law.,  §  43.  "  A  remainder  may  be  limited  on  a  contingency,  which,  if  it 
happens,  will  operate  to  abridge  or  determine  the  precedent  estate;  and  every 
such  remainder  shall  be  a  conditional  limitation."  Shifting  uses  and  shifting 
executory  devises  are  termed  remainders  in  New  York.  R.  P.  L.,  §§  25-28, 
and  43.     See  the  chapter  on  future  estates,  infra.  —  Ed. 


552      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CII.  I. 

hood.  And  it  is  my  earnest  desire  that  my  trustees  attend  to  [here 
some  words  are  manifestly  omitted]  agreeable  to  the  intention  of 
this  writing  or  conveyance." 

The  grantor's  wife  predeceased  him,  and  Mary  Burnett,  who  sub- 
sequently intermarried  with  one  Hammett,  died  in  1877,  leaving  no 
issue  of  her  second  marriage;  Margaret,  the  wife  of  the  plaintiff,  J. 
W.  Burnett,  and  the  defendants,  Marcus  Burnett,  Matthew  Burnett 
and  Mrs.  McKinney,  being  her  issue  by  her  first  marriage.  By  her 
will  she  appointed  the  defendant  Davis  executor,  directing  him  to 
sell  sufficient  of  her  personal  and  real  estate  to  pay  her  debts.  The 
executor  sold  all  of  her  property,  both  real  and  personal,  including 
the  lands  conveyed  by  the  above  mentioned  deed,  and  the  object 
of  this  action  is  to  set  aside  the  sale  of  these  lands  and  to  have  the 
same  partitioned  amongst  the  above  named  heirs  of  Mary  Hammett, 
formerly  Mary  Burnett. 

The  first  question  presented  is  as  to  the  nature  of  the  estate  which 
Mary  Hammett  took  in  the  lands  conveyed  by  said  deeds.  Both 
the  referee,  to  whom  the  issues  in  the  action  were  referred,  and  the 
circuit  judge  held  that  she  took  an  estate  in  fee  conditional,  and  we 
concur  with  them  in  so  holding.  The  deed,  as  will  be  seen,  is  very 
informal,  but  the  conveying  words  are  to  Mary  Burnett  "  and  the 
lawful  heirs  of  her  body."  The  authorities  universally  hold  that 
these  are  the  apt  words,  to  create  an  estate  in  fee  conditional,  and 
we  are  unable  to  discover  anything  in  the  terms  of  this  deed  to  take 
this  case  out  of  the  well-settled  general  rule.  The  subsequent 
words  "or  to  the  trustees  for  her  and  her  heirs'  use  and  benefit," 
cannot  have  this  effect,  for  the  word  "  heirs  "  as  there  used  must  be 
construed  as  meaning  the  same  class  of  heirs  —  heirs  of  the  body  — 
which  had  previously  been  designated.  The  same  remark  will  apply 
to  the  words  "  lawful  heirs  "  as  used  in  the  latter  part  of  the  deed. 
These  words  are  not  found  in  the  habendum  clause,  as  suggested  in 
one  of  the  arguments,  for  there  is  no  such  clause  in  the  deed,  and 
must  be  regarded  as  used  to  indicate  the  same  class  of  persons 
referred  to  in  the  conveying  part  of  the  deed. 

Nor  can  the  fact  that  trustees  are  interposed  affect  the  question. 
For,  even  if  the  deed  should  be  regarded  as  a  conveyance  to  the 
trustees  for  the  use  of  Mary  and  the  lawful  heirs  of  her  body,  about 
which  there  might  be  a  serious  question,  it  would  not  take  the  case 
out  of  the  operation  of  the  rule  in  Shelley's  Case.  It  is  true  that 
the  case  of  Austin  v.  Payne,  8  Rich.  Eq.  9,  does  hold  that  where  the 
estate  of  the  ancestor  and  that  limited  to  the  heirs  are  not  of 
the  same  quality,  that  is,  where  one  is  equitable  and  the  other  legal, 
the  rule  in  that  celebrated  case  will  not  apply.     But  that  case  recog- 


I.  2.]  THE   FEE-CONDITIONAL.  553 

nizes  the  doctrine  that  where  both  estates  are  equitable  it  will  apply. 
If,  therefore,  the  deed  should  be  regarded  as  creating  an  equitable 
estate,  originally,  in  Mary,  it  created  the  same  kind  of  an  estate  in 
the  heirs  of  her  body,  and  both  estates  lost  that  character  when  there 
was  nothing  for  the  trustees  to  do,  as  the  statute  would  then  execute 
the  uses.  Bouknightv.  Epting,  n  S.  C.  71,  and  the  cases  there  cited. 
The  only  duty  imposed  upon  the  trustees  was  an  exercise  of  their 
discretion  as  to  what  property  the  wife  of  the  grantor  should  be 
allowed  the  use  of,  in  the  event  she  survived  him;  but  as  she  died 
before  the  grantor,  there  was  absolutely  nothing  for  the  trustees  to 
do,  and  hence,  even  if  it  should  be  regarded  that  the  deed  conveyed 
the  estate  to  the  trustees,  the  statute  would  execute  the  uses,  and 
the  estates  would  become  legal  both  in  Mary  and  the  heirs  of  her 
body. 

Regarding,  then,  the  estate  as  a  fee-conditional,  our  next  inquiry 
is,  whether  it  was  liable  for  the  debts  of  Mary  Hammett,  the  first 
taker,  in  the  hands  of  her  heirs.  In  the  case  of  Izard  v.  Middleton, 
Bail.  Eq.  228,  cited  with  approval  in  Pearsc  v.  Killian,  McM.  Eq. 
231,  it  was  held  that  lands  held  in  fee-conditional  are  bound,  after 
the  birth  of  issue,  by  the  lien  of  a  judgment  or  decree,  against  the 
tenant  in  fee,  in  bar  of  the  right  of  the  issue  to  take  per  for  mam  dam. 
It  seems  to  me  that  the  same  reasoning  which  led  to  this  conclusion 
would  necessarily  lead  to  the  conclusion  that  land  so  held  would  be 
assets  for  the  payment  of  debts  even  though  not  reduced  to  judg- 
ment; and  such  was  the  opinion  of  the  distinguished  Chancellor 
Harper,  who  delivered  the  opinion  of  the  court  in  Izard  v.  Middleton. 
At  page  235  he  says:  "  But  if  there  had  been  no  decree  against  Mr. 
Izard  in  his  lifetime,  yet  if  the  heir  takes  only  by  succession  from 
the  ancestor,  and  in  his  right,  it  would  seem  to  follow  that  whatever 
would  be  liable  to  debts  in  his  hands  must  be  assets  in  the  hands  of 
the  heir;  and  such  is  the  purport  of  the  Statute  5  Geo.  2,  chap.  7." 
It  is  true  that  this  was  only  a  dictum,  inasmuch  as  in  that  case  the  debt 
had  been  reduced  to  judgment  and  had  become  a  lien  on  the  land 
during  the  lifetime  of  the  first  taker,  yet  it  is  a  dictum  supported 
not  only  by  the  great  name  of  that  eminent  jurist,  but  by  the 
unanswerable  reasoning  employed  by  him  in  that  case. 

The  fundamental  difference  between  an  estate  in  fee-conditional, 
after  the  condition  has  been  performed,  and  an  estate  in  fee  simple 
is,  1st,  that  in  the  former  the  course  of  descent  is  confined  to  a  par- 
ticular class  of  heirs,  and  upon  failure  of  such  heirs  the  estate  reverts 
to  the  donor;  2d,  that  the  holder  of  such  an  estate  can  only  dispose 
of  it  by  some  act  which  takes  effect  during  his  life.  In  all  other 
respects  their  qualities  and  incidents  are  the  same.     In  a  grant  of  an 


554      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

estate  in  fee-conditional,  heirs  of  the  body  are  not  named  on  account 
of  any  benefit  intended  for  them,  or  for  the  purpose  of  controlling  or 
limiting  the  ancestor's  power  of  disposition  during  his  life,  but 
simply  for  the  purpose  of  prescribing  the  course  of  descent,  in  case 
no  such  disposition  is  made.  In  the  case  of  a  fee  simple  estate  the 
law  prescribes  that  the  estate  shall  descend  to  the  heirs  generally,  in 
case  the  ancestor  makes  no  disposition  of  the  estate,  while  in  the 
case  of  an  estate  in  fee-conditional  the  instrument  creating  the  estate 
confines  the  descent  to  a  particular  class  of  heirs.  Both  classes  of 
heirs  take  by  succession  from  the  ancestor,  and  as  in  fee  simple 
estates  the  heirs  generally  take  the  estate  subject  to  a  liability  for 
the  debts  of  the  ancestor,  we  see  no  reason  why,  in  estates  in  fee- 
conditional,  the  heirs  of  the  body  to  whom  the  descent  is  confined 
should  not  take  the  estate  in  the  same  way. 

Our  next  inquiry  is  as  to  the  effect  of  the  disposition  made  by 
Mary  Hammett,  by  will,  for  the  sale  of  the  lands  held  by  her  in  fee 
conditional.  In  this  State  it  has  been  settled  that  an  estate  in  fee 
conditional  is  not  the  subject  of  devise.  Jones  ads.  Postell,  Harp. 
92.  To  allow  such  a  power  to  a  tenant  in  fee  conditional  would  be 
to  give  him  the  power  to  disturb  the  course  of  descent  fixed  by  the 
instrument  creating  the  estate,  and  hence  it  cannot,  consistently 
with  the  nature  of  the  estate,  be  allowed.  The  moment  the  first 
taker  dies,  without  having  alienated  the  estate  in  his  lifetime,  it 
descends  to  and  rests  in  the  heirs  of  his  body,  and  his  will,  which 
can  only  take  effect  after  his  death,  cannot  divest  the  heirs  of  the 
estate.  So,  at  common  law,  a  joint  tenant  could,  during  his  life, 
alien  his  estate,  but  he  could  not  devise  it  for  the  reason  that  "  no 
devise  can  take  effect  till  after  the  death  of  the  devisor,  and  all  the 
land  presently  cometh  by  the  law  to  his  companion  who  surviveth," 
and  the  commentator  remarks  that  Littleton  "  by  the  words  post 
mortem  and  per  mortem  used  in  the  text,  though  they  jump  at  one 
instant,  alloweth  priority  of  time  in  the  instant,  which  he  dis- 
tinguisheth  by  per  and  post.  And  the  reason  of  this  priority  is  that 
the  survivor  claimeth  by  the  feoffer,  and  therefore  in  judgment  of 
law  his  title  is  paramount  to  the  title  of  the  devisee,  and  conse- 
quently the  devise  is  void."  Co.  Litt.  iSo^.  It  follows,  therefore, 
that  Mary  Hammett  had  no  right  to  devise  the  lands  conveyed  by 
the  deed  from  Mark  Cantrell,  her  power  of  disposition  ceasing  with 
her  life,  and  that  the  sale  thereof  made  by  the  executor,  under  the 
directions  of  her  will,  even  though  for  the  payment  of  debts,  was 
without  authority. 

The  points  raised  by  the  plaintiff's  third,  fourth  and  fifth  grounds 
of  appeal   cannot,   be   considered   by  us,  as   there   is  no  copy  of   the 


La.]  FEES-TAIL.  555 

pleadings  set  out  in  the  "  Case,"  and  we  are  not  at  liberty  to  assume 
that  the  circuit  judge  went  beyond  the  scope  of  the  pleadings  in 
rendering  his  decree.  He  was  bound  by  the  55th  rule  of  the  Circuit 
Court  to  make  due  provision  for  the  payment  of  debts  before  order- 
ing the  partition  asked  for;  and  the  counsel  for  the  plaintiff  is  in 
error  in  supposing  that  it  did  not  appear  that  the  personal  estate 
was  insufficient  for  the  payment  of  the  debts,  for  the  referee 
distinctly  reported  that  the  debts  of  Mary  Hammett  "  amounted  to 
very  nearly  the  value  of  her  whole  estate." 

The  judgment  of  this  court  is  that  the  judgment  of  the  Circuit 
Court  be  affirmed.1 


e.    The  fee-tail. 
Shope,  J.,  in  LEHNDORF  v.  COPE. 

122  Illinois,  317. —  1887. 

It  is  contended  by  defendant  in  error,  that  by  the  deed  of  August 
3,  1883,  from  Humphrey  and  wife  to  "  Maria  Anna  Lehndorf  and  her 
heirs  by  her  present  husband,  Henry  Lehndorf,"  Mrs.  Lehndorf 
took  a  fee  simple  estate  in  the  lands  conveyed,  while  plaintiffs  in 
error  contend  that  she  thereby  took  a  life  estate  only,  with  remainder 
in  fee  to  her  children  by  said  Henry  Lehndorf. 

The  deed  being  statutory  in  form,  contains  no  habendum  limiting 
or  defining  the  estate  taken  by  Mrs.  Lehndorf,  and  although  the 
deed  must  be  held  equivalent  to  one  containing  full  covenants,  Elder 
v.  Derby,  98  111.  228,  it  is  manifest  that  the  estate  granted  would  not 
be  enlarged  or  restricted  thereby.  Such  covenants  are  an  assurance 
of  the  title  granted  to  the  grantees,  whomsoever  they  may  be.  If 
Mrs.  Lehndorf  took  the  fee,  the  covenants  assure  that  estate  to  her; 
if  she  takes  an  estate  in  tail,  the  covenantor  warrants  to  her  a  life 
estate,  and  the  remainder  in  fee  to  whomever  would  take  upon 
determination  of  her  estate.  Therefore,  as  said  by  counsel  for 
defendant  in  error,  the  determination  of  the  question  depends  upon 
a  construction  of  the  granting  clause  of  the  deed,  which  is,  that  the 
grantors,  in  consideration,  etc.,  "  convey  and  warrant  to  Maria  Anna 

1  In  England  the  statute  de  donis  conditionalibus  (West.  II,  12S5)  compelled  the 
courts  to  construe  such  estates  as  that  above  "according  to  the  form  of  the 
gift."  and  the  resulting  estate  was  known  as  an  "estate-tail."  See  Lehndorf  w. 
Cope,  infra.  This  statute  was  understood  to  be  in  force  in  the  other  orignal 
States,  but  not  in  South  Carolina.  See  Gray's  "  Rules  Against  Perpetuities," 
§|  18  and  14,  for  the  general  principles  and  for  citation  of  other  South  Carolina 
cases.  —  Ed. 


556      ESTATES   AS   TO    QUANTITY    AND    QUALITY.      [PT.  IV.  CII.  I. 

Lehndorf,  and  her  heirs  by  her  present  husband,  Henry  Lehndorf, 
of,"  etc.,  the  lands  in  controversy. 

The  legitimate  purpose  of  all  construction  of  a  contract  or  other 
instrument  in  writing,  is,  to  ascertain  the  intention  of  the  party  or 
parties  in  making  the  same,  and  when  this  is  determined,  effect  will 
be  given  thereto,  unless  to  do  so  would  violate  some  established  ruie 
of  property.  The  nature  and  quantity  of  the  interest  granted  by  a 
deed  are  always  to  be  ascertained  from  the  instrument  itself,  and 
are  to  be  determined  by  the  court  as  a  matter  of  law.  The  intention 
of  the  parties  will  control  the  court  in  construction  of  the  deed,  but 
it  is  the  intention  apparent  and  manifest  in  the  instrument,  constru- 
ing each  clause,  word  and  term  involved  in  the  construction  accord- 
ing to  its  legal  import,  and  giving  to  each  thus  construed  its  legal 
effect.  Washburn  on  Real  Prop.  404;  Bond  v.  Fay,  12  Allen,  88; 
Lippctt  v.  Kelley,  46  Vt.  516;  Price  v.  Sisson,  13  N.  J.  Eq.  17S; 
Caldwell  v.  Fulton,  31  Pa.  St.  489;    Wager  v.   Wager,  1  S.  &  R.  374. 

It  cannot  be  presumed  that  the  parties  used  words  or  terms  in  the 
conveyance  without  intending  some  meaning  should  be  given  them, 
or  without  an  intent  that  the  effect  legitimately  resulting  from  their 
use  should  follow;  hence,  if  it  can  be  done  consistently  with  the 
rules  of  law,  that  construction  will  be  adopted  which  will  give  effect 
to  the  instrument,  and  to  each  word  and  term  employed,  rejecting 
none  as  meaningless  or  repugnant. 

We  should,  perhaps,  first  notice  the  contention  of  counsel  for 
defendant  in  error,  that  by  virtue  of  section  13  of  the  Conveyance 
act,  (as  there  is  here  no  express  limitation  upon  the  estate  of  Mrs. 
Lehndorf,  and  as  no  one  can  have  heirs  while  living,)  the  words 
following  the  grant  to  her  should  be  rejected,  and  the  deed  read  as 
if  to  her  only.  This  arises  from  a  misapprehension  of  the  statute. 
The  evident  purpose  of  the  section  referred  to,  was  to  change  the 
rule  of  the  common  law,  whereby,  if  a  conveyance,  etc.,  was  made 
without  words  of  inheritance,  an  estate  for  the  life  of  the  grantee 
only  was  created.     The  section  is  as  follows: 

"  Sec.  13.  Every  estate  in  lands  which  shall  be  granted,  conveyed 
or  devised,  although  other  words  heretofore  necessary  to  transfer  an 
estate  of  inheritance  be  not  added,  shall  be  deemed  a  fee  simple 
estate  of  inheritance,  if  a  less  estate  be  not  limited  by  express  words, 
or  do  not  appear  to  have  been  granted,  conveyed  or  devised,  by 
construction  or  operation  of  law." 

It  is  not  necessary,  as  seems  to  be  supposed,  that  to  create  a  less 
estate  than  the  fee,  there  should  be  expressed  words  of  limitation, 
either  under  the  statute  or  at  common  law.  It  is  sufficient  for  that 
purpose  if  it  appear,  by  necessary  implication,  that  a  less  estate  was 


I.  2.]  FEES-TAIL.  557 

granted.  In  an  early  case,  Frogmortonv.  Wharrey,  2  W.  Black.  728, 
where  there  was  a  surrender  of  copyholds  by  R.,  who  was  seized  in 
fee  to  M.,  his  then  intended  wife,  and  the  heirs  of  their  two  bodies, 
etc.,  Wilmot,  C.  J.,  delivering  the  opinion  of  the  court  for  himself, 
Bathurst,  Gould  and  Blackstone,  JJ.,  after  holding,  on  authority  of 
Gossage  v.  Taylor,  Styles  325,  and  Lane  v.  Panne/,  1  Roll.  438,  that 
the  children  thus  begotten  took  as  purchasers  and  not  as  heirs,  says, 
the  only  difference  in  the  cases  is,  that  in  those  cases  "  the  wife  had 
an  express  estate  for  life,  and  here  not.  But  upon  legal  principles 
the  cases  are  just  alike.  An  estate  '  to  A.,  and  the  heirs  of  his  body  ' 
is  the  same  as  an  estate  '  to  A.  for  life,  remainder  to  the  heirs  of  his 
body.'  By  operation  of  law,  the  added  words  created,  in  the  case 
cited,  in  M.  a  life  estate  only,  with  remainder  to  the  heirs  of  herself 
and  R  ,  as  purchasers.  So  the  grant  "  to  A.,  and  the  heirs  of  his 
body,"  by  operation  of  law  creates  an  estate  tail  in  A.,  remainder  in 
tail.     And  this  has  been  the  uniform  holding. 

The  sixth  section  of  the  Conveyance  act  provides,  that  in  cases 
where,  by  the  common  law,  any  person  or  persons  might,  after  its 
passage,  become  seized  in  fee  tail  of  any  lands,  etc.,  by  virtue  of  any 
gift,  devise,  grant  or  conveyance  "  hereafter  to  be  made,"  or  by  any 
other  means  whatsoever,  such  person  or  persons,  instead  of  being  or 
becoming  seized  thereof  in  fee  tail,  shall  be  deemed  and  adjudged 
to  be  and  become  seized  thereof  for  his  natural  life  only,  and  the 
remainder  shall  pass,  in  fee  simple  absolute,  to  the  person  or  persons 
to  whom  the  estate  tail  would,  on  the  death  of  the  first  grantee  or 
donee,  pass,  according  to  the  course  of  the  common  law,  by  virtue 
of  such  gift,  devise  or  conveyance.  It  is  apparent,  if  at  common 
law,  by  virtue  of  this  conveyance,  Mrs.  Lehndorf  would  take  an 
estate  tail,  whether  an  estate  tail  general,  or  an  estate  tail  special,  the 
thirteenth  section  would  be  inoperative,  and  by  virtue  of  section  six 
she  would  become  seized  of  an  estate  for  her  life,  with  remainder  in 
fee  to  those  to  whom  the  estate  is  immediately  limited. 

Estates  tail  came  into  general  use  upon  construction  by  the  courts 
of  the  statute  de  donis  conditionalibus,  13  Edw.  1,  c.  1,  §  1,  and 
while  no  extended  discussion  will  be  necessary,  an  examination  suffi- 
cient to  determine  if  this  case  falls  within  the  rules  creating  an 
estate  tail,  will  be  proper. 

To  create  an  estate  in  fee  simple,  at  common  law,  the  grant  must 
be  to  the  grantee  and  his  heirs,  without  limitation,  to  take  from 
generation  to  generation,  in  the  regular  course  of  descent.  A  tenant 
in  fee  simple  is  defined  by  Blackstone  to  be,  "  he  that  hath  lands, 
tenements  or  hereditaments,  to  hold  to  him  and  his  heirs  forever, 
generally,  absolutely,  simply,  without  mentioning  what   heirs,   but 


558      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  (II.   I. 

referring  that  to  his  own  pleasure  or  the  disposition  of  the  law." 
Com.  ii,  104.  Estates  in  fee  tail  were  of  two  kinds.  Estates  tail 
general,  as  where  the  grant  was  to  one  and  the  heirs  of  his  body  gen- 
erally, so  that  his  issue  in  general,  by  each  and  all  marriages,  are 
capable  of  taking  per  for  mam  doni;  and  estates  tail  special,  where  the 
gift  or  grant  was  restricted  to  certain  heirs,  or  class  of  heirs,  of  the 
donee's  body.  Blackstone's  Com.  n,  113,  114;  4  Kent's  Com.  n; 
1  Washburn  on  Real  Prop.  66.  In  a  grant  of  lands,  words  of  inherit- 
ance were  necessary,  at  common  law,  to  the  creation  of  a  fee,  but 
in  the  creation  of  a  fee  tail  estate  more  was  required.  There  must 
also  be  words  of  procreation,  indicating  the  body  out  of  which  the 
heirs  were  to  issue,  or  by  whom  they  were  to  be  begotten.  The 
ordinary  formula  was  to  make  the  gift  or  grant  to  the  donee,  as  the 
grantee  was  called,  "  and  the  heirs  of  his  body,"  or  "  her  heirs  upon 
her  body  to  be  begotten,"  or  "  upon  her  body  to  be  begotten  by 
A;  "  but  there  was  no  especial  efficacy  in  these  particular  forms  of 
words,  and  it  was  requisite,  only,  that  in  addition  to  limitation  to 
"  heirs,"  the  description  of  the  heirs  should  be  such  that  it  should 
appear  they  were  to  be  the  issue  of  a  particular  person.  Blackstone's 
Com.  11,  114;  1  Washburn  on  Real  Prop.  72;  2  Preston  on  Estates, 
478,  and  cases  cited;     2  Tarman  on  Wills,  325. 

The  necessary  words  of  inheritance  are  not  here  wanting  to  create 
a  fee  simple,  or  fee  tail,  at  common  law.  The  grant  is  to  Mrs. 
Lehndorf  and  her  heirs,  and  if  the  description  had  stopped  here,  a 
fee  simple  estate  would,  at  common  law,  have  passed  by  the  deed. 
The  grant  is  not,  however,  to  her  and  her  heirs  simpliciter,  but  to  her 
and  her  heirs  by  a  particular  husband,  and  by  necessary  implication 
excludes  the  construction  that  heirs  generally  were  intended.  Heirs, 
generally,  would  include  not  only  those  designated,  but  children  she 
may  have  or  have  had  by  any  other  husband,  as  well  as  collaterals. 
Who,  under  the  law,  could  be  her  heirs  by  her  present  husband  except 
her  children  by  him  begotten?  If  the  word  "  begotten  "  had  been 
introduced  before  the  preposition  "by,"  so  as  that  it  would  have 
read,  "  her  heirs  begotten  by  her  present  husband,"  etc.,  it  would 
have  been  no  more  certain  that  the  issue  of  her  body  was  intended. 
If  it  be  conceded  that  equivalent  words,  which,  by  necessary 
implication,  describe  and  designate  the  particular  body  out  of  which 
the  heir  should  proceed,  would  suffice  to  create  an  estate  tail  at 
common  law,  which  seems  to  be  done  by  the  cases  and  text-writers, 
then  the  conclusion  seems  irresistible  that  such  an  estate  was  here 
created.  "  Her  heirs  by  her  present  husband"  could  be  no  other 
than  the  issue  of  her  body  by  him  begotten.     No  other  person,  or 


I.  2.]  FEES-TAIL.  559 

class  of  persons,  would  answer  the  description,  and  they  would  and 
do  fill  it  in  every  particular. 

This  precise  point  was  ruled  in  Wright  v.  Vernon,  2  Drewry,  439, 
where  it  is  said:  "  The  effect,  therefore,  of  a  limitation  'to  the 
right  heirs  of  Sir  Thomas  Samwell,  by  a  particular  wife,  forever,' 
is  precisely  the  same  as  that  of  a  limitation  to  the  heirs  of  his  body 
by  that  particular  wife,  forever.  The  words,  '  of  his  body,'  are  not 
in  the  least  degree  necessary  to  this  construction  of  the  term  '  heirs,' 
or  '  right  heirs,'  because  without  their  insertion  the  full  and  absolute 
effect  of  them  is  involved  in  the  description,  '  his  right  heirs,  by 
Mary,  his  second  wife,'  which  description  limits  the  meaning  of  the 
term  '  heirs  '  to  heirs  especial,  procreated  by  himself,  as  effectually 
and  as  necessarily  as  the  words,  '  of  his  body,'  could  do  if  they  had 
been  added."  This  was  a  case,  it  is  true,  arising  upon  a  devise,  in 
respect  of  which  much  greater  latitude  of  construction  is  allowable 
than  in  the  construction  of  deeds;  but  that  consideration  can  in  no 
way  affect  the  weight  of  the  authority  upon  the  matter  being 
considered. 

It  follows,  that  Mrs.  Lehndorf  would,  at  common  law,  be  seized, 
by  virtue  of  this  conveyance,  of  an  estate  tail  special  in  the  lands 
conveyed,  and  therefore,  under  the  statute,  would  take  an  estate  for 
her  life  only,  and  that,  by  virtue  of  the  statute  cited,  the  remainder 
vested  in  fee  in  her  children  by  her  said  husband,  in  esse  at  the 
time  of  making  the  deed,  subject  possibly,  however,  to  be  opened  to 
let  in  after-born  children  of  the  same  class.  If  no  issue  of  her  body 
"  by  her  present  husband  "  had  been  then  living,  the  remainder 
would  have  fallen  under  Fearne's  fourth  and  Blackstone's  first  defi- 
nition of  a  contingent  remainder,  i.  e.,  when  the  remainder  is  limited 
"  to  a  dubious  and  uncertain  person."  But  here,  at  least  two  of  the 
children  who  would,  under  the  statute,  take  the  fee  simple  estate 
upon  the  determination  of  the  life  estate,  were  in  being  when  the 
deed  was  executed  and  delivered,  and  the  remainder  vested  imme- 
diately in  them  in  fee,  subject  to  the  possible  contingency  of  being 
divested  pro  tanto,  if  opened  to  let  in  after-born  children  answering 
the  same  description.  The  person  to  whom  the  remainder  is  limited 
is  ascertained,  the  event  upon  which  it  is  to  take  effect  is  certain  to 
happen,  and  although  it  may  be  defeated  by  the  death  of  such  per- 
son before  the  determination  of  the  particular  estate,  it  is  a  vested 
remainder.  "  It  is  the  uncertainty  of  the  right  of  enjoyment  which 
renders  a  remainder  contingent,  —  not  the  uncertainty  of  its  actual 
enjoyment."  2  Blacks.  Com.  169;  Fearne  on  Rem.  149;  Kent's 
Com.  203;  2  Sandf.  C.  R.  533;  Hawley  v.  James,  5  Paige,  467; 
Moore  v.  Lyons,  25  Wend.  144. 


560      ESTATES   AS   TO   QUANTITY   AND   QUALITY.      [PT.  IV.   CM.  I. 

But  it  is  said  that  the  rule  in  Shelley's  Case  should  be  applied;  but 
it  will  be  seen  that  its  application  will  produce  the  same  result. 
That  rule,  as  formulated  in  2  Jarman  on  Wills,  page  332,  will  best 
illustrate  the  position  here.  It  is:  "  The  rule  simply  is,  that  where 
an  estate  of  freehold  is  limited  to  a  person,  and  the  same  instrument 
contains  a  limitation,  either  mediate  or  inmediate,  to  his  heirs,  or 
the  heirs  of  his  body,  the  word  "  heirs  "  is  a  word  of  limitation,  — 
/'.  e.,  the  ancestor  takes  the  whole  estate  comprised  in  this  term. 
Thus,  if  the  limitation  be  to  the  heirs  of  his  body,  he  takes  a  fee  tail; 
if  to  his  heirs  general,  a  fee  simple."  The  rule  operates  upon  the 
words  of  inheritance  without  affecting  the  words  of  procreation,  so 
that  if,  in  any  case,  the  words,  "  heirs  of  his  body,"  or  other  equiva- 
lents sufficient  to  create  an  estate  tail,  are  used,  a  fee  tail  is  vested 
in  the  first  taker,  and  not  the  fee  simple,  as  seems  to  be  supposed. 
Therefore,  if  the  rule  be  applied,  Mrs.  Lehndorf  would,  at  common 
law,  be  seized  of  an  estate  in  fee  tail,  and  brought  directly  within 
the  terms  of  section  six  of  the  Conveyance  act,  before  cited.  When, 
therefore,  Mrs.  Lehndorf,  joined  by  her  husband,  mortgaged  the 
land  to  Humphrey,  it  was  not  in  her  power  to  incumber  the  fee,  and 
that  estate  passed  to  and  vested  in  her  two  children  then  living, 
unincumbered  by  the  lien  created  by  the  mortgage.1 


3.  The  Necessary  Incidents  of  a  Fee. 

a.   Alienability. 

(1.)  In  General:  Voluntary  and  Involuntary.2     Inter  vivos  and 

by  Devise. 

MUNROE  v.  HALL. 

97  North  Carolina,  206.  —  1SS7. 

[Reported  herein  at  p.  561.] 

1  Estates-tail  are  practically  non-existant  as  such  in  the  United  States,  —  the 
statutes  converting  them,  at  the  moment  of  their  creation,  into  some  other  form 
of  estate  or  estates.  In  New  York  and  several  other  States,  they  become 
estates  in  fee-simple,  some  of  these  States  preserving  any  remainder  in,  fee 
under  certain  circumstances.  N.  Y,  R.  P.  L.,  g  22.  Other  States  follow  the 
rule  of  Lehndorf  v.  Cope.  In  Massachusetts  and  Pennsylvania  the  estate 
seems  to  remain  in-tail  until  a  conveyance  occurs  by  some  tenant-in-tail.  See 
the  American  note,  p.  121,  of  Hutchins'  Williamson  Real  Property.  —  Ed. 

'"  Involuntary,"  i.  e.,  by  process  of  law  for  the  payment  of  debts  of  its 
owner  and  for  taxes  and  assessments;  also  in  the  exercise  by  the  State  of  its 
right  of  eminent  domain.  —  Ed. 


I.  3-J  FEES;    RESTRAINTS   ON   ALIENATION.  561 

(2.)  Validity    and    Effect   of   Clauses  Intended  to  Restrain  the 
Alienation  of  a  fee. 

(a.)  Conditions,  limitations  and  conditional  limitations.*     Declarations  that  the  fee 
shall  be  inalienable}     General  restraints. 

MUNROE  v.  HALL. 
97  North  Carolina,  206.  —  1887. 

Action  by  the  children  and  heirs-at-law  of  Thomas  Munroe  to 
recover  certain  lands  from  the  heirs  of  W.  S.  Hall  to  whom  they 
were  conveyed  by  Annabella  and  Mary  Munroe. 

The  lands  in  question  were  deeded  by  N.  Munroe  to  his  children, 
Thomas,  Patrick,  Annabella  and  Mary,  their  heirs,  etc.,  upon  certain 
terms  and  conditions  set  out  in  the  opinion.  Defendants  succeeded 
below. 

Merrimon,  J.  (after  stating  facts).  — The  sole  question  presented 
by  the  record  in  this  case  for  our  decision  is,  did  the  deed  in  ques- 
tion operate  to  convey  the  fee  simple  estate  in  the  land  therein 
described  as  situate  and  being  on  the  north  side  of  the  road  men- 
tioned to  Annabella  Munroe  and  Mary  Munroe? 

We  cannot  hesitate  to  answer  this  question  in  the  affirmative. 
The  deed  by  appropriate  terms  for  that  purpose,  conveys  the 
fee  to  them,  and  there  is  nothing  in  it  that  at  all  indicates  a  con- 
trary intention  on  the  part  of  the  donor,  except  the  words  limiting 
the  estate  to  these  sisters  "  as  long  as  either  of  them  is  single,"  and 
the  proviso  in  a  subsequent  part  of  it,  that  they  should  never  "  sell 
or  dispose  of  any  part  of  the  above  named  land  ...  in  any 
manner  whatever." 

The  effect  of  the  words  "  as  long  as  either  of  them  is  single,"  need 
not  be  considered,  because  both  the  sisters  died  many  years  ago, 
and  were  never  married.  In  any  possible  view  of  these  words,  they 
could  only  indicate  a  purpose  to  give  the  land  to  Patrick  in  a  con- 
tingency that  never  happened  and  never  can  happen.  There  is  no 
intimation  of  any  purpose  to  abridge  the  estate  given  them,  unless 
in  the  contingency  of  marriage. 

'"  No  attempt  is  made  to  attach  any  character  of  inalienability  to  the  estate, 
but  the  estate  is  given  either  on  condition  that  it  shall  not  be  alienated,  or  until 
it  is  alienated."  Gray's  "  Restraints  on  Alienation  "  (2d  ed.),  §  10.  That  no 
special  favor  is  shown  to  limitations  or  conditional  limitations  in  restraint  of 
alienation  over  conditions,  see  ^§  2ga-2QC.    Id.  —  Ed. 

'•'See  Gray's  "  Restraints,"  §  10.  With  a  third  class  of  attempted  restraints 
—  covenants  not  to  alien  —  we  have  here  nothing  to  do.  See,  however,  note 
to  §  19  of  Gray's  "  Restraints."  —  Ed. 

LAW    OF    PROP.    IN    LAND — 36 


562      ESTATES   AS   TO    QUANTITY    AND    QUALITY.      [PT.  TV.  CII.  I. 

As  to  the  proviso  recited  above,  it  is  repugnant  to  the  fee  simple 
estate  previously  conveyed,  and  is  in  absolute  restraint  of  all  alien- 
ation, and  is,  therefore,  simply  void.  An  important  incident  of  the 
fee  simple  estate  is  the  right  of  alienation,  and  hence,  any  condition 
in  a  deed  conveying  lands  or  a  devise  that  seeks  to  prevent  aliena- 
tion altogether,  is  void,  being  repugnant  to  the  estate  conveyed 
The  rule,  however,  is  not  so  comprehensive  in  its  operation  as  to 
prevent  all  conditions  and  restraints  upon  the  power  of  alienation. 
Such  as  are  limited  and  reasonable  in  their  application,  and  as  to  the 
time  they  must  operate,  are  valid  and  will  be  upheld.  1  Wash,  on 
R.  P.  67-69;  4  Kent  Com.  135;  Pearson's  Law,  Lee.  135 

There  is  no  error  and  the  judgment  must  be  affirmed.' 


Christiancy    J.,  in  MANDELBAUM  v.  McDONELL. 

29  Michigan,  78.  —  1874. 

This  devise,  it  is  true,  is  not  in  form  a  devise  of  the  lands 
themselves,  but  of  the  proceeds  when  sold.  If,  however,  there 
is  anything  in  the  will  made  perfectly  clear  and  placed  beyond 
all  possible  doubt,  it  is  that  the  proceeds  should  be  the  absolute  and 
exclusive  property  of  the  devisees  (except  the  interest  of  Ellen 
Daily  and  Ann  Baxter  might  be  defeated  by  a  condition  subsequent), 
and  that  no  other  person  should,  in  any  event,  have  any  right  or 
interest  in  them  under  any  circumstances.  Not  even  the  violation 
by  them  of  the  provisions  restricting  their  power  of  sale,  was  to 
defeat  or  affect  their  interest,  forfeit  it  to  the  heirs,  or  pass  it  over 
to  others;  but  all  conveyances  of  that  kind,  it  is  declared,  shall  be 
void;  and  the  testator  even  goes  so  far  as  to  declare  it  to  be  his 
intention  "  that  no  proceedings  whatever,  either  in  a  court  of  law 
or  chancery,  shall  in  any  way  impair  or  deprive  any  of  (his)  devisees 
of  any  of  the  bequests  in  this  will  made,  before  the  same  is  actually 
paid  into  the  hands  of  such  devisees."  It  is  very  clear,  therefore, 
that  though  the  word  "  condition  "  is  used  in  connection  with  this 

'The  rule  is  the  same  in  the  case  of  attempts  to  restrain  the  alienation  of 
equitable  interests  in  the  nature  of  a  fee.  rotter  v.  Couch,  141  U.  S.,  296.  But 
see  Claflin  v.  Cinjlin,  149  Mass.,  19,  and  the  discussion  in  Gray's  "  Restraints," 
:'.'    120-124P. 

A  provision  (conditional  limitation)  that  a  fee  shall  be  forfeited  in  case  the 
grantee  aliens  a  life  interest  in  another  parcel  conveyed  by  the  same  deed  would 
Beem  to  \><-  a  purely  collateral  condition,  and  not  void.  Camp  v.  Cleary,  76 
Va.,  140.  See,  however,  Gray's  discussion  of  this  case  in  his  "  Restraints  on 
Alienation  "  (2d  ed.)i  §§  29a-29c.  —  Ed. 


I.  3-]  FEES;    RESTRAINTS   ON   ALIENATION.  563 

devise,  the  devise  is  not  made  upon  the  condition  that  it  shall  be 
forfeited  on  a  sale,  or  an  attempted  sale,  and  that  the  interest  of  the 
devisees  shall  terminate,  or  go  to  the  heirs,  nor  is  it  limited  over  to 
any  other  person  upon  a  breach  of  the  restriction  upon  the  power  of 
sale,  but  that  the  devise  and  the  interest  intended  to  pass  by  it  were 
to  be  absolute  and  unconditional  in  this  respect,  whether  the  restric- 
tion should  be  observed  or  violated.  And  as  to  the  agreement  to 
these  restrictions,  which  the  devisees  were  required  to  sign,  suppos- 
ng  it  to  have  been  signed,  who  were  the  parties  whose  interests 
were  to  be  affected  by  it?  Who  had  a  right  to  insist  upon  its  per- 
formance, or  to  any  remedy  for  its  breach?  Clearly  none  but  the 
devisees  themselves,  who  might,  therefore,  mutually  release,  abandon 
and  put  an  end  to  it,  at  least  with  the  unanimous  consent  of  all, 
which  they  did  by  their  conveyances,  if  these  were  in  other  respects 
valid.  It  was,  in  fact,  very  frankly  admitted  by  the  counsel  for  the 
defendants  that  the  interest  given  by  the  will  to  these  devisees  was 
a  present  vested  interest,  though  it  was  insisted  that  it  was  not 
properly  an  interest  in  the  land,  but  the  proceeds;  that  these  pro- 
ceeds could  only  be  obtained  through  the  execution  by  the  executors 
of  the  power  of  sale. 

But  when  such  a  bare  power  of  sale  is  given  to  the  executors 
merely  to  sell  the  lands  for  the  purpose  of  paying  over  the  proceeds 
to  devisees,  whose  right  under  the  will  to  such  proceeds  is  an  abso- 
lute and  vested  right,  we  understand  the  law  to  be  settled,  not  only 
that  all  such  devisees  may  collectively,  before  the  power  of  sale  is 
executed,  elect  to  take  the  land,  instead  of  the  proceeds,  according 
to  their  respective  interests  in  the  latter,  and  thus  prevent  a  sale, 
but  that  each  of  them  may  ordinarily  so  elect  as  to  his  own  share. 
See  Reed  v.  Underbill,  12  Barb.  113;  Kirkman  v.  Miles,  13  Ves.  338; 
Craig  v.  Leslie,  3  Wheat.  563;  Tazewell  v '.  Smith's  Admrs.,  1  Rand. 
(Vir.)3i3;  Burr  v.  Sim,  1  Whart.  252;  Broome  v.  Curry's  Admrs.,  19 
Ala.  805;  Quin  v.  Skinner,  49  Barb.  132;  Story's  Eq.  Jur.  §  793. 
This  is  the  effect  which  the  law  itself  gives  to  such  devise,  — which 
gives  a  vested  interest  in  the  whole  proceeds  to  the  devisees,  — 
whether  the  will  provides  for  such  an  election  or  not,  and  even 
though  it  should  expressly  forbid  the  election. 

Whether  it  would  be  competent  to  make  a  devise  upon  the  express 
condition  that  the  proceeds  alone  should  be  received  or  the  devise 
to  be  forfeited,  or  the  property  or  proceeds  go  over  to  another  in 
case  of  a  refusal  to  accept  the  proceeds,  or  of  claiming  the  land,  we 
need  not  consider,  as  this  devise  is  not  made  dependent  upon  any 
such  condition.  And  though  the  language  makes  it  in  form  a  devise 
of  the  proceeds  instead  of  the   land,  yet  so  far  from  providing  in 


564      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.   IV.  CH.  I. 

reference  to  this  devise  or  that  of  other  property  in  Detroit,  against 
the  election  (as  it  may  be  said  the  testator  has  undertaken  to  do  in 
reference  to  the  devise  of  other  portions  of  property  which  the 
executors  might  sell  at  any  time),  the  last  provision  of  the  will  in 
reference  to  the  property  in  Detroit  seems  to  me  to  recognize  the 
right  of  the  devisees  to  elect  to  hold  the  land  instead  of  the  pro- 
ceeds, and  dispense  with  a  sale  as  soon  as  the  time  should  arrive, 
when,  by  the  will,  the  executors  were  to  be  authorized  to  sell,  viz.: 
as  appears  in  a  former  provision  in  reference  to  this  particular 
devise,  upon  Breckenridge  reaching  the  age  of  twenty-five  and  the 
death  of  the  testator's  widow,  etc. ;  thus  recognizing  the  right  to 
elect  at  that  time,  but  undertaking  to  restrict  the  right  until  that 
time. 

We  must,  therefore,  hold  that  the  devise  to  the  widow  was  of  a 
life  estate  (should  she  remain  unmarried),  and  that  to  the  other 
devisees  it  was  a  devise  of  the  fee  subject  to  the  life  estate;  in  other 
words,  the  remainder  in  fee.  And  though  they  might  at  their  election 
permit  or  prevent  a  sale  by  the  executors  for  their  benefit  and  on 
their  account,  it  was  a  present  vested  remainder  in  fee,  or  the  entire 
estate  in  fee,  subject  to  the  life  estate  of  the  widow. 

Now.  as  to  the  restriction  against  alienation,  while  there  is,  as  to 
the  particular  lands  here  in  question,  a  direct  and  express  restriction 
upon  the  executors  not  to  sell  it  until  Breckenridge  should  reach  the 
age  of  twenty-five,  or  during  the  life  of  the  widow  if  she  remained 
unmarried,  the  restriction  upon  the  devisees  not  to  sell  this  property 
is  not  so  direct  and  express.  It  is  clear,  however,  and  admitted, 
that  the  result  of  all  the  provisions  taken  together  is  a  sufficiently 
clear  expression  of  intention  to  forbid  and  restrict  the  devisees  from 
selling  the  property  or  its  proceeds,  in  other  words,  the  estate 
devised  so  far  as  these  lands  are  in  question,  until  the  period  last 
above  mentioned.  The  estate  devised  being  an  absolute  vested 
estate  in  fee,  the  only  remaining  question  is  whether  such  a  restric- 
tion of  the  right  of  the  devisees  to  sell  such  an  estate  is  valid.  This 
is  the  main  question  in  the  case  and  was  very  properly  so  treated 
and  discussed  by  the  counsel  on  both  sides.  And  before  proceeding 
to  determine  this  question,  it  may,  for  the  sake  of  clearness  and  to 
avoid  the  confusion  which  might  arise  from  confounding  questions 
which  might  otherwise  seem  analogous,  be  as  important  to  point  out 
what  the  question  does  not  involve,  as  what  it  does.  It  does  not, 
then,  involve  the  question  whether  a  restraint  upon  the  sale  of  this 
property  for  an  equal  length  of  time  might  not  have  been  rendered 
legally  effective  by  the  conveyance  of  the  legal  title  to  trustees,  in 
trust  for  the  benefit  of  these  devisees,  according  to  instructions  as 


I.  3-]  FEES;    RESTRAINTS   ON   ALIENATION.  565 

to  time  of  sale,  which  might  have  been  inserted  in  the  will;  in  which 
case  the  validity  of  the  restrictions  as  to  time  would  depend  mainly 
upon  the  question  whether  the  period  exceeded  that  allowed  by  the 
rule  against  perpetuities.  Nor  does  the  question  involve  an  inquiry 
how  far  a  somewhat  similar  object  might  have  been  accomplished  by 
making  this  estate  in  fee  in  these  devisees  defeasible,  upon  the  con- 
dition of  their  executing,  before  a  certain  period,  a  conveyance  to 
certain  persons,  or  to  any  other  than  certain  persons,  or  to  any  party 
whatever,  or  of  their  becoming  bankrupt,  or  allowing  a  sale  upon 
execution,  or  permitting  a  judgment  to  become  a  lien,  or  upon  con- 
dition of  using  the  property  in  some  particular  way,  the  property 
being  limited  over  to  another,  or  to  be  forfeited  and  revert  on 
breach  of  the  condition.  In  these  cases  there  would  be  some  party 
besides  these  devisees  interested  in  the  observance  of  the  condition, 
with  a  right  to  take  advantage  of  the  breach,  viz.,  the  heirs  of  the 
devisor,  or  the  person  to  whom  the  property  was  limited  over.  It 
is  quite  possible  that  many  restrictions  or  qualifications  upon  the 
right  of  devisees  or  grantee  may  be  made  effectual  by  making  the 
estate  itself  dependent  upon  such  condition,  to  which  it  could  not 
be  subjected  if  the  estate  given  is  absolute,  as  it  is  admitted  to  be 
here. 

Nor  does  the  fact  that,  in  the  case  of  an  executory  devise,  or  in 
that  of  a  contingent  remainder,  or  any  other  interest  not  vested,  a 
restriction  upon  the  power  of  the  devisees  to  sell  before  it  shall 
become  vested  in  interest,  would  be  good,1  in  any  manner  tend  to 
sustain  such  a  restriction  upon  a  vested  estate  in  fee. 

This  devise  is  not  made  to  trustees  for  the  benefit  of  the  devisees, 
but  directly  to  the  devisees  themselves.  The  estate  devised  is  not 
a  conditional  one  to  be  forfeited  or  to  revert  to  the  heirs  of  the 
testator,  or  to  go  over  to  others  on  a  breach  of  the  restrictions,  nor 
one  which  is  to  vest  at  some  future  day,  or  upon  the  happening  of 
some  future  event,  but  an  absolute  vested  remainder  or  estate  in  fee, 
and  though  not  to  come  into  actual  enjoyment  until  the  death  of  the 
widow,  to  whom  a  life  estate  is  given,  it  is  just  as  much  vested  and 
the  devisees  have  just  as  much  right  to  sell  the  interest  or  estate 
devised  as  if  there  had  been  no  intervening  estate  for  life. 

And  the  question  of  the  validity  of  the  restriction  is,  in  my  view, 
precisely  the  same  in  all  its  legal  aspects  as  if  no  life  estate  had 
been  given  to  the  widow,  but  the  whole  had  been  given  in  fee 
directly  to  these  devisees,  as  an  absolute  estate  in  fee  and  in  posses- 
sion, with  the  same  provisions  restricting  the  power  of  sale.  My 
first  difficulty  in  holding  the  devisees  or  their  estate  bound  by  the 

1  See  J5  46  Gray's  "  Restraints  on  Alienation  "  —  Ed. 


566      ESTATES   AS   TO    QUANTITY    AND    QUALITY.      [lJT.   IV.  CII    I. 

restriction  is  this:  A  legal  obligation  always  involves  the  idea,  not 
only  of  a  party  upon  whom  it  rests,  but  of  another  party  in  whose 
favor,  or  for  whose  interest  or  benefit  it  is  imposed,  and  who,  there- 
fore, has  the  right  to  call  for  its  enforcement. 

To  give  vitality  and  force  to  the  current  of  a  legal  obligation,  it 
requires,  like  the  galvanic  current,  a  battery  with  two  opposite 
poles,  between  which  the  current  is  to  pass  and  the  force  to  operate. 
A  circuit  formed  upon  only  one  remains  quiescent.  The  force  of 
gravitation  itself  would  cease  to  act,  if  not  to  exist,  without  at  least 
two  bodies  (or  particles)  between  which  it  could  be  exerted.  And 
it  is  not  easy  to  see  how  this  restriction  can  impose  any  legal  obliga- 
tion upon  the  devisees  or  limit  their  power  over  the  estate,  when  the 
observance  or  violation  of  the  restriction  can  neither  promote  nor 
prejudice  any  interest  but  their  own;  and  it  has  not  been  claimed 
that  any  other  interest  could  be  affected  here.  Let  us  test  this  a 
little  further  by  a  few  analytical  questions.  In  whose  behalf,  for 
whose  interest,  is  the  restriction  imposed?  Is  it  not  solely  for  that 
of  the  devisees  themselves?  And  who  has  a  right  to  enforce  it  or 
complain  of  its  breach.  What  species  of  legal  tie  or  obligation  is 
that  which  attaches  only  at  one  end,  and,  ending  where  it  begins 
operates  only  in  behalf  of  the  very  party  upon  whom,  or  on  whose 
property  it  is  imposed,  making  him  at  the  same  time  the  obligor  and 
obligee?  May  not  a  party  in  whose  behalf  an  obligation  exists 
forego  or  release  its  performance?  If  not,  then  at  whose  instance 
will  the  court  compel  him  to  insist  upon  its  performance?  It  must 
be  admitted  that  such  a  restriction,  in  such  a  case,  is  not  naturally 
calculated  to  lead  to  litigation,  since,  if  the  party  in  whose  favor  the 
obligation  exists  insists  upon  its  performance,  it  would  in  all  prob- 
ability be  performed;  and  if  the  party  upon  whom  it  rests,  should 
refuse  to  obey  the  restriction,  the  party  in  whose  favor  it  was  imposed 
would  not  be  likely  to  insist  upon  it,  both  these  parties  being  one  and 
the  same.  But  does  it  not  seem  to  result  that  he  may  do  very  much 
as  he  pleases  about  performing  such  an  obligation?  I  confess  my 
inability  to  see  how  the  restriction  is  any  more  binding  upon  the 
devisees  or  their  estate  than  it  would  have  been  upon  the  heirs  or 
their  estate,  had  the  testator  disposed  by  the  will,  only  of  the  life 
estate  to  the  wife,  and  left  the  remainder  to  descend  to  the  heirs,  and 
undertaken  to  impose  the  same  restrictions  upon  them  or  upon  the 
estate  in  their  hands.  In  either  case  the  whole  estate  (subject  to  the 
life  mi cnst)  is  equally  centered  in  the  devisees,  in  one  case,  and  in 
the  heirs  in  the  other,  and  no  interest  but  their  own  to  be  affected  by 
its  observance  or  violation.  In  neither  case,  as  it  seems  to  me,  can 
the  rei  tri<  tion  be  regarded  as  anything  more  than  the  expression  of 


I.  3.]  FEES;    RESTRAINTS   ON   ALIENATION.  567 

a  desire,  or  the  mere  advice  of  the  testator,  which  though  the 
devisees  might  choose  more  or  less  to  respect,  they  had  a  clear  legal 
right  to  disregard.  To  make  it  obligatory  would  be  to  sanction  a 
testamentary  guardianship  over  parties  not  subject  to  that  species 
of  control. 

These  considerations  seem  to  me  sufficient  to  dispose  of  this  case, 
and  to  show  that,  as  in  Hall  v.  Tufts,  18  Pick.  459,  and  Blackstone 
Bank  v.  Davis,  21  Pick.  42,  the  intent  expressed  is  contrary  to  law, 
or,  at  least,  one  which  courts  cannot  enforce.  See,  also,  Brandon  v. 
Robinson,  18  Ves.  429;  Graves  v.  Dolphin,  1  Sims.  66;  Rochford  v '. 
Hackman,  9  Hare,  479;  Doebler  s  Appeal,  64  Penn.  St.  9;  Kepple 's 
Appeal,  53  Penn.  St.  211;  Craig  v.   Wells,  1 1  N.  R.  315. l 


(/>.)   Qualified  restraints. 

SCHERMERHORN  v.  NEGUS 
1  Denio  (N.  Y.),  448.  — 1845. 

Ejectment.  The  will  of  Ryer  Schermerhorn  devised  to  each  of 
his  six  children  for  life  a  one-sixth  part  of  certain  premises  and  after 
their  decease,  respectively,  the  share  of  each  was  to  go  to  his  chil- 
dren. The  will  contained  this  provision:  "  No  part  or  parcel  of  the 
real  estate  herein  above  by  me  devised  shall  be  sold  or  alienated  by 
any  of  my  above  named  children,  or  by  any  of  their  descendants  or 
posterity,  except  it  be  to  each  other,  or  to  their  and  each  of  their 
descendants,  upon  pain  that  he,  she  or  they  shall  forfeit  the  same 
and  be  debarred  of  holding  any  part  thereof."  One  child  died  in 
1838,  leaving  children  of  whom  plaintiff  is  one. 

The  defendant  offered  to  prove  a  conveyance  in  fee  of  the  premises 
from  Jeremias  Schermerhorn,  the  plaintiff's  father,  and  a  possession 
by  the  defendant  and  those  under  whom  he  claimed  title  under  that 
conveyance  for  twenty-six    years  which,  being  objected   to   by   the 

1  Here  follows  this  paragraph  : 

"  But  lest  this  may  be  thought  too  narrow  a  ground,  and  since  the  question 
in  all  its  aspects,  with  the  authorities  upon  it,  has  been  argued  and  fully  con- 
sidered, at  the  risk  of  being  charged  with  entering  upon  a  discussion  which 
does  not  properly  belong  to  the  case,  I  proceed  to  inquire  whether  the  result 
will  be  different  if  this  restriction  is  to  be  placed  upon  the  same  grounds  as  if  it 
had  been  made  a  condition,  the  non-observance  of  which  had  been  declared  by 
the  will  to  forfeit  or  defeat  the  estate." 

The  remainder  of  the  opinion  (which  is  very  long)  contains  the  best  discus- 
sion of  this  branch  of  the  subject  to  be  found  anywhere  in  the  books,  reviewing 
the  authorities  at  length.  — Ed. 


568      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

plaintiff's  counsel,  was  overruled  by  the  court.  The  defendant's 
counsel  insisted  that  the  provision  restraining  alienation,  except 
among  the  devisees  and  their  descendants,  rendered  the  devise  void, 
for  creating  a  perpetuity;  and  also  that  the  plaintiff's  title  did  not 
take  effect  in  possession  until  after  the  decease  of  all  the  devisees 
for  life;  which  objections  were  overruled  by  the  circuit  judge,  and 
a  verdict  for  the  plaintiff  was  taken  subject  to  the  opinion  of  the 
court 

By  the  Court,  Beardsley,  J.  —  I  think  the  objections  which  were 
taken  on  the  trial,  to  a  recovery  in  this  case,  cannot  be  sustained. 
The  will  of  Ryer  Schermerhorn  was  not  annulled  by  the  clause  which 
it  contained  against  alienation,  although  that  clause,  being  repug- 
nant to  the  nature  of  the  estate  devised,  was  void,  at  least  as  to 
those  who  were  to  take  a  fee  under  the  will.  4  Kent's  Com.  131; 
Newkerk  v.  Newkei-k,  2  Caines,  345;  2  Cruise's  Dig.  6;  McWilliams 
v.  Nisby,  2  Serg.  &  Rawle,  513;  Co.  Litt.  222,  223. 

Under  the  will,  the  children  of  the  devisor  were  tenants  in  com- 
mon for  life.  When  Jeremias,  one  of  those  children,  died,  his  share 
passed  by  the  will  to  his  children,  who  thereby  became  tenants  in 
common  with  the  surviving  devisees  for  life. 

As  the  plaintiff's  right  did  not  accrue  until  the  decease  of  his  father, 
the  tenant  for  life  in  1836,  the  adverse  possession,  had  it  been 
proved,  would  have  been  no  bar  to  the  action.  The  testimony 
offered  was  therefore  properly  excluded,  and  the  plaintiff  is  entitled 
to  judgment  on  the  verdict. 

Judgment  for  plaintiff.1 


WALKER  v.  VINCENT. 
19  Pennsylvania  State,  369.  —  1852. 

Lowrie,  J.  —  Under  the  will  of  P.  S.  V.  Hamot,  Mrs.  Walker 
takes  a  fee  simple,  and  not  a  life  estate,  and  therefore  the  judgment 
should  have  been  entered  for  the  plaintiff,  instead  of  the  defendant. 

The  will  is,  "I  devise  to  my  daughter,  Josephine  M.  Walker,  and 
to  her  legal  heirs,"  and  then  it  proceeds  to  describe  the  property, 
and  adds,  "  all  of  which  I  devise  to  my  said  daughter,  and  to  her 
heirs  forever,  with  this  express  condition  and   provision,  that  she 

1  Hut  such  a  condition   has  been   held  valid  in  England,      hi  re  Macleay,  L.  R. 
20  Eq.  t86.     Sec,  however,  criticism   on   this  case  in    /;/  re  Rasher \  26  Ch.  Div. 
801.     See  also   In  re  Dugdale,  38  Ch.  Div.  176.     Seethe  summing  up  of  the  cases 
as  in   restraints  on   alienation   qualified  as  to  persons  in  Gray's  "  Restraints," 
£?  41-43    -  Ed. 


I.  3.]  FEES;    RESTRAINTS   ON   ALIENATION.  569 

shall  not  alien  or  dispose  of  the  same,  or  join  in  any  deed  or  con- 
veyance with  her  husband  for  the  transfer  thereof  during  her  natural 
life,  but  the  same  shall  be  and  remain  during  the  period  aforesaid 
inalienable." 

This  devise  is  very  like  that  in  the  will  of  James  Hunter,  who  gave 
a  farm  to  his  "  son  John  and  to  his  heirs,  with  this  proviso,  that  he 
shall  not  have  any  right  to  sell  nor  convey  the  said  farm  to  any 
person  or  persons  whomsoever,  but  at  his  death  all  the  right,  title, 
and  interest  shall  be  and  remain  full  and  perfect  in  his  lawful  heirs;  " 
and  this  was  held  at  our  late  term  at  Harrisburg,  in  the  case  of 
Reifs7iyder  v.  Hunter,  to  convey  a  fee.      [19  Pa.  St.  41.] 

The  law  does  not  pretend  to  carry  out  the  intention  of  the  testator 
in  all  cases;  for  many  testators  show  a  very  clear  intention  to  shackle 
the  estates  granted  by  them  to  a  degree  that  is  totally  incompatible 
with  any  real  enjoyment  of  them,  and  which  the  law  does  not  allow. 
Hence,  many  of  the  rules  of  law  are  designed  to  control  and  frustrate 
the  most  manifest  intent.  The  great  merit  of  the  rule  in  Shelley's 
Case  is,  that  it  frustrates  and  is  intended  to  frustrate  unreasonable 
restrictions  upon  titles;  for  when  an  estate  is  declared  to  be  a  fee 
simple  or  fee  tail,  it  is  at  once  made  subject  to  a  limitation  in  its 
proper  form,  no  matter  how  clear  may  be  the  testator's  intention  to 
the  contrary. 

There  can  be  no  doubt  that  in  the  present  case  the  testator  meant 
to  give  an  estate  that  should  descend  exactly  as  if  it  were  a  fee 
simple,  for  it  is  to  Mrs.  Walker  and  her  proper  heirs.  This,  then, 
is  his  primary  intent,  and  the  attempt  to  restrain  the  power  of  the 
first  taker  is  his  secondary  intent;  and  it  is  entirely  ineffectual, 
under  the  rule  that  where  the  primary  and  secondary  intent  of  the 
testator  are  inconsistent  with  each  other,  the  primary  intent  shall 
prevail. 

It  makes  no  difference  that  the  testator  has  expressly  withheld 
one  of  the  rights  essential  to  a  fee  simple,  for  the  law  does  not  allow 
an  estate  to  be  granted  to  a  man  and  his  heirs  with  a  restraint  on 
alienation,  and  frustrates  the  most  clear  intention  to  impose  such 
restraint,  just  as  it  allows  alienation  of  an  estate  tail,  though  a  con- 
trary intent  is  manifest.  And  it  would  be  exceedingly  improper  in 
any  court,  in  construing  a  devise  to  a  man  and  his  heirs,  to  endeavor 
to  give  effect  to  the  restraint  upon  alienation  by  changing  the 
character  of  the  estate  to  a  life  estate,  with  a  remainder  annexed  to 
it,  or  with  an  executory  devise  over. 

The  law  is  wise  in  not  consenting  to  give  effect  to  all  the  intentions 
of  testators,  for  if  it  did,  it  would  not  be  many  generations  before 
all  the  land  of  this  country  would  be  effectually  shackled,  so  that 


570      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

the  generations  in  possession  of  it  would  have  but  little  power  over 
it.  To  prevent  even  stray  instances  of  this  kind,  the  rule  that 
avoids  all  restraints  upon  grants  to  a  man  and  his  heirs  is  most 
valuable  in  its  influence. 

Let  this  judgment  be  reversed,  and  the  record  remitted  to  the 
Court  of  Common  Pleas  of  Erie  county,  with  directions  to  enter 
judgment  in  favor  of  the  plaintiff,  in  accordance  with  the  terms  of 
the  case  stated.  Judgment  reversed,  etc. 


TWITTY  v.  CAMP. 
Phillip's  Equity  (N.  C),  6i.  —  1866. 

Battle,  J.  —  In  the  events  which  have  happened  since  the  death 
of  the  testator,  it  has  become  unnecessary  for  us  to  decide  the  ques- 
tion raised  in  respect  to  the  slaves  given  to  his  daughter,  Mary  Jane. 

The  only  inquiry  pressed  upon  us  relates  to  the  clause  of  non- 
alienation  annexed  to  the  devises  of  land  to  each  of  the  testator's 
children.  These  devises  are  in  fee  simple,  and  the  condition, 
by  which  the  testator  has  attempted  to  restrain  the  alienation 
of  the  land  before  the  devisees  respectively  attain  the  age 
of  thirty-five  years,  is  contrary  to  the  nature  of  the  estate, 
and  is  therefore  void.  See  Purdue  v.  Givens,  1  Jones  Eq.  306, 
where  a  condition  restrictive  of  the  power  of  free  alienation 
was  pronounced  a  nullity.  The  present  case  differs  from  that 
only  in  the  circumstance,  that  here  the  restriction  is  confined 
to  a  disposition  of  the  land  under  the  age  of  thirty-five  years.  But 
this,  we  think,  makes  no  difference.  If  the  testator  had  the  power 
to  impose  such  a  condition  for  thirty-five  years,  he  might  have 
imposed  it  for  fifty,  seventy  or  a  hundred  years,  for  we  are  not  aware 
of  any  particular  age  up  to  which  the  restriction  would  be  good,  and 
beyond  which  it  would  be  bad.  Coke,  Blackstone,  and  other  ele- 
mentary writers,  lay  down  the  rule  generally,  that  a  condition  of 
non-alienation  annexed  to  the  conveyance  inter  vivos,  or  to  a  devise 
of  a  fee,  is  void,  because  it  is  inconsistent  with  the  full  and  free 
enjoyment  which  the  ownership  of  such  an  estate  implies.  Our  con- 
clusion is,  that  the  devisees  in  fee  under  the  will  before  us  have  the 
full  power  of  selling,  or  otherwise  disposing  of  their  lands  respec- 
tively, without  the  danger  of  incurring  a  forfeiture  for  so  doing. 
A  'I'cree  to  that  effect  may  be  drawn  accordingly. 

Decree  accordingly.1 

1  Mut  "  a  condition  or  conditional   limitation  upon   alienation  of  a  contingent 
Interei  1  before  it  vests  is  good."     Gray's  "  Restraints,"  £  46.      For  "  restraints 


I.  3.]  FEES;   RESTRAINTS   ON   ALIENATION.  571 

(c.)  Exception  in  case  of  separate  estate  of  married  woman} 
FEARS  v.  BROOKS. 
12  Georgia,  195.  —  1852. 

By  the  Court.,  Nisbet,  J.,  delivered  the  opinion. — Whether  the 
demurrer  to  the  bill  ought  to  be  sustained  or  not  depends  upon  two 
questions. 

First.  Does  the  will  create  a  separate  estate  in  the  testator's 
daughter?  If  it  does  not,  upon  her  marriage,  the  property  left  to 
her,  vested  in  her  husband  by  the  marital  right,  and  his  assignment 
of  it  to  Brooks,  the  complainant,  was  good. 

Second.  If  the  will  creates  a  separate  estate  in  the  daughter,  does 
it  at  the  same  time  restrain  her  power  of  alienation?  If  it  does  not, 
as  she  joined  with  her  husband  in  the  assignment  to  Brooks,  his  title 
is  good,  and  he  ought  to  recover. 

(1)  As  to  the  first,  I  remark,  that  a  separate  estate  may  be  made 
in  a  feme  sole,  as  well  as  in  a  married  woman,  which,  upon  marriage, 
will  be  good  against  the  marital  right;  and  this  although  no  particu- 
lar marriage  be  in  contemplation.  Upon  marriage,  the  trust  will 
immediately  attach  upon  the  property,  so  as  to  exclude  the  husband's 
title,  although  no  further  settlement  be  executed.  Anderson  v. 
Anderson,  2  M.  &  R.  427;  Davis  v.  Thorneycrof,  6  Sim.  420;  Tullett 
v.  Armstrong,  1  Beav.  1;  4  M.  &  Cr.  390;  Scarborough  v.  Bowman,  1 
Beav.  34;  4  M.  Cr.  377. 

The  contrary  was  held  by  Lord  Cottingham,  in  Massey  v.  Parker, 
2  M.  &  R.  174.  In  that  case,  it  was  ruled,  that  when  property  is 
given  or  settled  to  the  separate  use  of  an  unmarried  woman  it  vested 
in  her  husband  upon  her  marriage.  In  the  subsequent  cases  of 
Tullett  v.  Armstrong  and  Scarborough  v.  Bowman,  his  decision  was 
overruled;  and  in  affirming  these  decisions  on  appeal,  Lord  Cotting- 
ham overruled  himself.  4  M.  &  Cr.  377.  So  the  doctrine  is  to  be 
considered  settled  as  first  stated. 

(2)  The  interposition  of  a  trustee  to  protect  the  separate  estate 
was  at  first  deemed  essential,  because  the  interest  of  a  married  woman 
is  the  subject  only  of  equitable  cognizance.  Harvey  v.  Harvey,  1  P. 
Williams,  125;  s.  c.  2  Vern.  659;  Barton  \ .  Pierpont,  2  P.  Williams, 

on  alienation  qualified  as  to  manner,"  see  §§  55~56g  of  Gray.  Fines  for  alien- 
ation and  provisions  as  to  the  payment  of  quarter  sales  are  now  forbidden  in 
New  York  by  the  Constitution.    Art.  1  §  14. —  Ed. 

1  See  Gray's  "  Restraints,"  §§  125  to  131k.  As  will  be  seen,  the  restraint 
may  be  good  though  there  be  no  gift  over  and  no  forfeiture  of  any  kind 
imposed.  This  class  of  estates,  however,  is  likely  soon  to  be  obsolete  in  the 
United  States.  —  Ed. 


5/2      ESTATES   AS   TO   QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

79.  It  is,  however,  now  settled  that  a  separate  estate  may  exist, 
without  the  intervention  of  trustees.  In  that  case,  the  husband  will 
take  the  legal  interest,  but  equity  will  treat  him  as  a  trustee  for  his 
wife.  Bennetv.  Davis,  2  P.  Wil.  316;  Darky  v.  Darley,  3  Ath.  399; 
Lee  v.  Prideaux,  3  Bro.  C.  C.  383;  Parker  v  Brooke,  9  Vesey,  583; 
Major  v.  Lansley,  2  R.  &  M.  355. 

The  better  course  is  to  provide  a  trustee.  2  Roper,  H.  &  W. 
152.     In  this  case,  the  testator  appointed  a  trustee. 

(3)  My  next  proposition  is  that  no  particular  form  of  words  is 
necessary  to  create  a  trust  for  a  feme's  separate  use.  It  may  be 
declared  in  express  terms,  or  it  may  be  inferred,  from  the  pro- 
visions or  directions  as  to  the  mode  of  enjoyment,  or  management 
of  the  property.  Hill  on  Trustees,  420;  Stanton  v.  Hall,  2  R.  & 
M.  180;    Tyler  v.  Lake,  b.  188. 

The  intention,  however,  to  create  a  separate  estate  must  be  clearly 
expressed.  Lord  Brougham  held,  in  Tyler  v.  Lake,  2  R.  &  M.  189, 
that  the  expressions  must  be  such  as  "  leave  no  doubt  of  the  inten- 
tion, and  which  forbid  the  court  to  speculate  on  what  the  probable 
object  of  the  donor  might  have  been."  Taking  this  stringent  rule 
as  our  guide,  we  think  that  a  separate  estate  was  created  by  the  will 
now  under  consideration,  and  that  there  really  is  no  room  to  specu- 
late about  what  the  object  of  the  father  was,  in  the  provision  which 
he  made  for  his  daughter.  There  are  two  clauses  of  the  will  which 
bear  upon  the  question.  The  testator,  Andrew  Hall,  divides  the 
residuum  of  his  estate  equally  among  his  nine  children  and  directs 
that  "  the  shares  of  his  daughters  be  paid  over,  by  his  executors, 
to  the  trustee  afterwards  appointed,  for  their  use."  The  seventh 
item  of  the  will  appoints  Mr.  Fears  trustee  for  his  daughters,  one  of 
whom,  Amanda,  after  his  death,  intermarried  with  Cate,  who 
assigned  her  interests  in  the  estate  to  Brooks,  the  complainant. 
The  duties  of  the  trustee  he  proceeds  to  define  thus:  —  "  to  receive 
from  and  receipt  to  my  executors  for  the  distributive  shares  due  to 
each  of  my  daughters,  and  to  be  vested  by  him  in  such  property  as, 
in  his  judgment,  may  be  most  conducive  to  their  comfort  and 
interest,  and  to  have  the  title  to  such  investment  made  to  him,  as 
trustee,  for  their  use  and  benefit." 

It  is  conceded  that  the  limitation  implied  in  the  words,  to  their 
use  and  benefit,  will  not  alone  make  this  a  separate  estate.  A  limi- 
tation to  the  separate  or  sole  use  of  a.  feme  has  been  held  sufficient. 
1  Beav.  34,  4  M.  &  C.  377.  The  testator  clothes  the  trustee  with 
the  legal  estate  of  each  daughter's  share,  and  puts  him  in  possession 
and  also  authorizes  and  directs  him  to  invest  it  in  such  property  as, 
in  his  judgment,  may  he  most  conducive  to  their  comfort  and  interest, 


I.  3.]  FEES;    RESTRAINTS   ON   ALIENATION.  573 

and  requires  the  title  of  the  property  when  bought,  to  be  made  to 
him,  as  trustee,  for  their  use  and  benefit.  From  the  mode  of  man- 
aging the  share  of  his  daughter,  prescribed  by  the  testator,  to  her 
trustee  we  infer,  necessarily,  that  the  estate  was  intended  for  her 
separate  use.  The  testator  intended  that  it  should  be  held  by  the 
trustee,  for  her  use,  against  the  right  or  title  which  a  future  husband 
might  acquire  by  marriage.  This  is  consonant  with  the  reason  of 
the  thing.  Not  only  is  the  fund  left  with  him.  to  be  invested  accord- 
ing to  his  discretion,  with  reference  to  the  comfort  and  interest  of 
his  daughter,  but  he  is  required  to  have  the  title  to  the  investment 
made  to  him,  as  trustee,  for  her  use.  This  direction  unequivocally 
indicates  the  purpose  of  the  father  to  create  a  trust,  and  to  hold  it 
up,  that  his  daughter  might  be  the  sole  beneficiary  of  his  bounty. 
The  very  thing  which  seems  to  be  guarded  against  is  a  title  and  man- 
agement of  the  property  in  anybody  else.  No  doubt  the  title  of  a 
future  huband  was  just  what  he  had  in  view  The  right  of  invest- 
ment (and  of  re-investment,  which  we  think  is  implied),  and  the 
directed  tenure  of  the  title,  is  incompatible  with  a  purpose  to  let  the 
property  take  its  usual  course,  upon  the  event  of  marriage.  The 
title,  in  the  event  of  marriage,  could  not  be  in  the  trustee  and  the 
husband  at  one  and  the  same  time.  Which,  then,  should  yield,  the 
marital  right  or  the  intention  of  the  testator?  Clearly  the  former; 
because  in  the  construction  of  wills,  the  intention  of  the  testator  must 
be  carried  out,  unless  in  violation  of  law.  There  is  no  law  violated 
in  the  creation  of  an  estate  which  defeats  the  marital  right.  The 
testator  left  it  with  the  trustee  to  determine  what  kind  of  investment 
would  most  conduce  to  the  comfort  and  interest  of  his  daughter; 
that  discretion  is  defeated,  if  the  husband  may  sell  the  interest. 
Indeed,  if  he  can  do  this,  then  the  creation  of  the  trust,  and  all  the 
powers  of  the  trustee,  are  nugatory.  But  it  is  said  that  the  trust 
was  fully  executed  when  the  daughter  married  —  his  powers  being 
only  such  as  appertain  to  a  testamentary  guardian.  Such  a  limita- 
tion of  his  powers  cannot  be  inferred  from  the  will,  and  seems  to  be 
gratuitous.  Why  appoint  a  trustee  at  all?  Why  not  leave  the  share 
of  his  daughters  with  the  executors?  Why  not  say  that  Mr. Fears  is 
to  be  her  guardian,  eo  nomine,  if  such  was  the  intention  of  the 
testator?  The  case  is  one  where  extreme  legal  subtlety  must  be 
invoked,  to  arrive  at  a  result  manifestly  repugnant  to  the  intention 
of  a  testator.  We  will  not  labor,  with  far-fetched  learning,  to 
defeat  a  father's  purpose  in  making  provision,  at  death,  for  his  child, 
when  such  purpose,  if  carried  out,  contravenes  no  law  of  the  land. 
We  are,  moreover,  clear  that  the  daughter  herself  is  restrained 
from  alienating  this  property. 


574      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.   IV.  CH.  I. 

(4)  A  married  woman,  unless  restrained  in  the  settlement,  is  a 
feme  sole  as  to  her  separate  estate.  IVyly  et  al.  v.  Collins  &  Co.,  9 
Ga.  223.  If  altogether  restrained,  she  has  no  power  of  alienation; 
and  if  partially  restricted,  she  is  a  feme  sole,  sub  modo,  and  must 
alien  alone  according  to  the  restriction.  If,  for  example,  she  is  for- 
bid to  dispose  of  her  separate  estate,  without  the  consent  of  her 
trustee,  a  disposition  without  his  consent  is  invalid.  Weeks  and 
Wife  v.  Sego  and  another,  9   Ga.  199. 

If  there  is  a  prohibition  against  alienation,  it  is  a  part  of  the  sepa- 
rate estate,  and  must  stand  or  fall  with  it.  And  it  is  no  objection 
to  the  validity  of  the  restriction,  that  the  woman  is  unmarried  at  the 
time  of  the  creation  of  the  trust.  1  Beav.  1 ;  4  M.  &  Cr.  290;  1 
Beav.  34;  4  M.  &  Cr.  390;  4  M.  &  Cr.  377. 

(5)  It  has  been  held  that  nothing  short  of  an  express  negative 
declaration,  will  suffice  to  deprive  a  feme  covert  of  her  right  of  dis- 
posing of  her  separate  estate.  This  rule  seems  to  be  stringent. 
Wills  in  reference  to  this  very  point  are  more  liberally  construed 
than  deeds.  If  the  intention  to  restrain  the  power  of  alienation  be 
clearly  collected  from  the  several  clauses  of  a  will,  they  will  all  be 
construed  together,  and  effect  will  be  given  to  the  intention  Bag- 
gettv.  Moore,  1  Coll.  138.  There  is  no  reason  why  the  intention  of 
a  testator  to  restrain  alienation  should  not  be  collected,  just  as 
intention  is  ascertained  in  regard  to  anything  else;  nor  is  there  any 
reason  why  intention  to  restrain  should  not  be  enforced  as  well  as 
any  other  intention.  In  this  will  there  is  no  express  prohibition 
against  alienation,  but  it  is  plainly  the  intention  of  the  testator, 
derived  from  the  several  clauses  in  relation  to  this  estate,  to 
restrain  his  daughter  from  disposing  of  it. 

The  reasons  already  stated  to  prove  this  to  be  a  separate  estate, 
demonstrate  a  purpose  to  prohibit  its  alienation  by  the  daughter. 
The  great  reason  is  this,  to  wit,  the  power  of  alienation  is  expressly 
given  to  the  trustee;  he  is  authorized  to  invest  the  fund  derived 
from  the  estate,  to  buy  and  sell,  and  such  a  power  is  wholly  incom- 
patible with  the  same  power  in  the  woman.  He  is  directed  to  take 
the  titles  of  the  investment  in  himself — -if  he  must  take,  he  must 
hold  them;  and  this  authority  is  inconsistent  with 'a  power  to  sell 
in  the  woman.  Direction  to  manage  the  fund,  by  investing  it 
according  to  his  judgment,  and  to  take  the  titles  of  the  property 
bought  as  trustee,  negatives  the  idea  that  the  testator  left  the  power 
to  dispose  of  it  in  his  daughter. 

The  demurrer,  we  think,  therefore,  ought  to  have  been  sustained, 
and  we  reverse  the  judgment  of  the  court  below. 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     575 

b.  Descent,  dwer,  curtesy. 

OVERTURF  v.   DUGAN. 

29  Ohio  State,  230.  —  1876. 

[Reported  herein  at  p.  20]. ' 


HOUGHTON  v.  HAPGOOD. 

13  Pickering  (Mass.),  154.  — 1832. 

[Reported  herein  at  p.  24.  ]5 


DURANDO  v.  DURANDO. 

23  New  York,  331.  —  1861. 
[Reported  herein  at  p.  65S.] 


II.  Freeholds  not  of  inheritance,  —  life  estates. 

1.   In  General — Nature  and  Classification 

a.   Absolute  and  defeasible. 

Beardsley,  J.,  in  ROSEBOOM  v.  VAN  VECHTEN. 

5  Denio  (N.  Y.),  414,  424.  —  1848. 

Under  the  will  of  Jacob  Roseboom,  his  widow  acquired  an  estate 
durante  viduitate  in  this  lot  of  land.  That  was  an  estate  for  her  life, 
determinable  on  her  ceasing  to  be  such  widow,  and  during  its  con- 
tinuance was  a  freehold.  4  Kent,  26;  1  Inst.  42,  a;  1  Cruise's  Dig. 
115,  §  8;  Watk.  on  Convey.  30  to  35.  In  the  year  1800,  the  widow, 
Hester  Roseboom,  executed  a  deed  in  fee  of  this  land  to  Guert  Van 
Schoonhoven,  which,  although  it  did  not  give  him  a  fee  simple,  as 
the  grantor  had  not  such  an  estate,  was  effective  to  transfer  the  life 
estate  of  the  grantor  to  the  grantee.  In  1806,  Van  Schoonhoven 
made  a  deed  in  fee,  for  the  same  land,  to  Leonard  Gansevoort,  who 
thus  acquired  a  freehold  estate  therein  for  the  life  of  the  widow 
Roseboom.     Ganesvoort  died  in  1810,  having  made  his  will  in  1800, 

1  See  also  March  v.  Berrier,  supra,  p.  70.  — -  En. 

2  See  also  Hatfield  v .  Sneden,  p.  641,  infra.  — Ed. 


576      ESTATES   AS   TO  QUANTITY   AND    QUALITY.       [PT.  IV.  CH.   I. 

by  which  all  his  estate,  real  and  personal,  was,  in  terms,  devised  to 
his  wife  for  life,  and  she  was  made  sole  executrix  of  the  will.  This 
will  being  made  before  the  devisor  had  any  interest  in  the  land  now 
in  question,  it  did  not  pass  by  the  will,  but  vested  in  the  widow  as 
executrix.  1  R.  L.  365,  §  4;  1  K.  &  R.  178,  §  4;  Doe  v.  Robinson, 
8  B.  &  C.  296.  In  1814,  the  widow  of  said  Ganesvoort  united  with 
two  other  persons  in  a  deed  of  this  land,  in  fee,  to  the  present 
defendant,  who  thereby  acquired  a  valid  title  to  said  land,  for  the 
life  of  the  widow  Roseboom.  She  did  not  die  until  1826,  having 
remained  a  widow  since  the  decease  of  her  husband,  Jacob  Rose- 
boom,  and,  as  the  defendant  had  not  conveyed  his  interest  in  said 
land,  he  had  a  freehold  estate  therein  when  the  fine  was  levied  in 
1824.  The  defendant  was  therefore  competent  to  levy  this  fine,  and 
the  proclamation  being  completed  in  1825,  it  became  effective  against 
the  plaintiff,  whose  right  to  bring  suit  accrued  in  1826.  This  action 
was  not  brought  until  1843,  more  than  five  years  after  the  right 
accrued.     The  fine  was  therefore,  an  insuperable  bar  to  a  recovery. 


WARNER  v.  TANNER. 
38  Ohio  State,  iiS.  —  1882. 


Action  by  Warner  as  administrator  of  L.  Bartlett,  deceased,  for 
the  value  of  a  lease  alleged  to  have  been  converted  by  Tanner  to 
his  own  use. 

In  1864  Tanner  leased  to  Bartlett  certain  premises,  Bartlett  to 
build  a  cheese  house  thereon  and  to  pay  for  the  use  of  said  premises 
thirty  dollars  per  annum  "  while  said  premises  shall  be  used  as  and 
for  manufacturing  cheese;  and  when  said  premises  shall  no  longer 
be  used  for  such  purpose,  the  premises  .  .  .  shall  again  revert 
to  said  Tanner,  said  Bartlett  having  the  privilege  of  removing  all 
buildings  and  fixtures  put  upon  said  premises  by  him."  Bartlett 
came  into  possession  under  the  lease  and  so  continued  until  his  death 
in  1874.  at  which  time  rent  was  paid  to  February  1,  1875. 

In  February,  1875,  Tanner  (having  previously  requested  the 
administrator  to  remove  the  buildings  and  fixtures)  went  into  pos- 
session  of  the  premises  against  the  protest  of  Warner,  who  there- 
upon brought  this  suit.  Judgment  on  verdict  for  plaintiff  was 
reversed  by  the  District  Court.  The  administrator  brings  error  to 
this  court. 

Okkv,  C.  J. — In  the  Court  of  Common  Pleas,  the  jury  was  charged, 
that  the  instrument  executed   by  the  parties  was  not  a  lease  at  will, 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     577 

nor  for  years,  nor  of  perpetual  duration;  "  that  said  lease  is  not 
real  property;"  that  it  "  was  a  lease  which  continued  and  run  for  an 
indefinite  period,  and  so  long  as  the  lessee,  or  his  assigns  or  personal 
representatives,  should  use  the  property  covered  by  said  lease  for 
the  purpose  of  manufacturing  cheese  thereon;"  that  upon  the 
death  of  Bartlett,  the  interest  passed  to  the  administrator  and  not 
his  heir;  and  that  the  administrator  could  maintain  a  suit  against  the 
Tanners  in  the  nature  of  an  action  of  trover  for  the  conversion  of 
the  fixtures  and  the  lease.  To  state  such  a  position  is  to  refute  it. 
The  only  instance  of  a  similar  action  which  I  remember  was  met  in 
Railroad  Co.  v.  Robbins,  35  Ohio  St.  531. 

Leases  may  be  at  will,  for  years,  for  life,  or  of  perpetual  duration. 
Foltz  v.  Huntley,  7  Wend.  210;  Taylor's  Land.  &  T..  §  72.  Indeed, 
they  may  be  made  for  any  period  which  will  not  exceed  the  interest 
of  the  lessor  in  the  premises.  And  whatever  the  term,  it  may  be 
subject  to  a  condition  which  is  a  qualification  annexed  to  the  estate 
by  the  grantor,  Sperry  v.  Pond,  5  Ohio  387,  s.  c,  24  Am.  Dec. 
296,  or  lessor,  Foltz  v.  Huntley,  supra,  whereby  the  estate  or  term 
granted  may,  among  other  things,  be  defeated  or  terminated. 

In  this  case  the  question  as  to  the  rights  and  interest  which  Bart- 
lett acquired  under  the  instrument,  is  one  of  construction.  The 
fact  that  he  was  required  to  and  did  place  upon  the  premises  valu- 
able structures,  which  he  could  only  remove  when  the  premises  were 
no  longer  used  for  the  manufacture  of  cheese  thereon,  satisfies  us 
that  this  was  not  a  lease  at  will  nor  a  lease  from  year  to  year.  On 
the  other  hand,  the  instrument  contains  no  words  indicating  an 
intention  to  grant  a  fee  in  the  premises;  and  yet  the  construction 
which  the  Court  of  Common  Pleas  placed  upon  it  would  render  it,  in 
effect,  precisely  the  same  as  though  the  grant  had  been  to  Bartlett, 
his  heirs  and  assigns.  It  would  endure,  according  to  that  construc- 
tion, until  the  premises  were  no  longer  used  for  the  manufacture  of 
cheese,  or  the  lessee  ceased  to  pay  rent  precisely  as  in  the  case  of 
a  grant  in  fee  with  such  condition.  Having  regard  to  the  whole 
instrument,  and  not  overlooking  the  fact  that  the  right  to  remove 
the  fixtures  is,  in  terms,  limited  to  Bartlett,  we  are  satisfied  that  a 
lease  for  life  was  granted  to  him,  subject  to  be  defeated  when  the 
premises  were  no  longer  used  for  the  manufacture  of  cheese  thereon, 
or  by  the  non-payment  of  rent.  Hurd  v.  Cushing,  7  Pick.  169, 
Sperry  v.  Fond,  supra;  Foltz  v.  Huntley,  supra;  Rowle  s  Case,  Tudor's 
Lead.  Cas.  Real  Prop.  2d  ed.  27-100;  4  Wait's  Act.  &  Def.  502. 
Indeed,  it  is  well  settled  that  if  one  grant  an  estate  to  a  man  and 
woman  during  coverture,  or  as  long  as  the  grantee  or  lessee  shall 
dwell  in   such  a  house  or  use  the  premises  for  a  specified  purpose, 

LAW  OF  PROP.   IN  LAND  —  37 


578      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.   IV.   CH.  I. 

as  for  instance,  the  manufacture  of  cheese  thereon,  or  for  any  like 
uncertain  time,  the  grantee  or  lessee  has  in  judgment  of  law  a  free- 
hold, i  Williams  on  Ex.  (6  Am.  ed.)  749;  Taylor's  L.  &  T.,  §  52; 
Beeson,  App.,  Burton  res.  12  C.  B.  (74  E.  C.  L.)  647;  and  see  cases 
cited,  supra.  The  cases  relied  on  by  the  plaintiff  in  error  White  v. 
Fuller,  38  Vt.  194;  Lewis  v.  Effinger,  30  Pa.  St.  281;  Cook  v.  Bisdee, 
18  Pick.  527,  are  in  no  respect  inconsistent  with  the  view  here  stated ; 
and  the  statutes  and  decisions  relating  to  permanent  leasehold 
estates  in  this  state,  which  are  also  cited  and  relied  upon  by  the 
plaintiff  in  error,  shed  little  light  on  the  case. 

The  administrator  of  Bartlett  had  no  right  of  action,  except  with 
respect  to  property  merely  personal,  which  may  have  remained  on 
the  premises  when  this  suit  was  brought;  nor  had  he  a  right  of  action 
with  respect  to  such  personal  property,  unless  the  Tanners  converted 
it  to  their  own  use.  Leases  of  land  of  a  chattel  quality  are  chattels 
real,  and  go  to  the  administrator;  in  other  words,  all  interests  for  a 
definite  space,  measured  by  years,  months  or  days,  are  deemed 
chattels,  interests,  and,  independently  of  statutory  provisions, 
Northern  Bank  v.  Boosa,  13  Ohio,  334,  30  Ohio  St.  285,  go  to  the 
administrator;  but  he  has  no  interest  in  a  lease,  like  this,  for  a  free- 
hold term.     See  authorities  cited  in  the  last  paragraph. 

Judgment  affirmed. 


b.  For  one's  own  life  and  pur  autre  vie. 

(1)  Pur  autre  vie:  Direct  and  Indirect  Creation. 

REYNOLDS  v.  COLLIN.1 

3  Hill  (N.  Y.),  \\\.  —  1842. 

[Reported  herein  at  p.  13.] 


Beardsley,  J.,  in  ROSEBOOM  v.  VAN  VECHTEN. 

5  Denio  (N.  Y.),  414.  —  1848. 

[Reported  herein  at  p.  575.] 


1  For  a  special  limitation  as  to  number  of   lives  in  N.  Y.,  see   N.  Y.  R.  P.  L., 
835-  — Ed. 


II.   i.J      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     579 

(2 .)  Pur  autre  vie:  Effect  of  Death  of  First-taker  in  Possession. 
(a.)  General  and  special  occupants. 

ATKINSON  v.  BAKER. 
4  Durnford  and  East  (Eng.),  229.  —  1791. 

Detinue  to  recover  certain  deeds. 

One  Foster  being  seized  of  a  life  estate  in  certain  lands  conveyed 
them  to  one  Williams  and  his  heirs,  who  took  in  trust  for  W.  Atkin- 
son, his  heirs,  executors  and  assigns.  Atkinson  received  the  deeds 
of  the  premises.  On  his  death  they  came  into  the  possession  of  his 
heir-at-law  Baker.  Plaintiff,  as  administrator  of  Atkinson,  brings 
this  action  to  recover  them.  Defendant  demurred  insisting  that 
plaintiff  was  not  entitled  to  the  deeds,  the  defendant  being  a  special 
occupant  of  the  estate.  It  was  further  stated  that  prior  to  the 
statute,  29  Car.  2,  c.  3,  every  estate  pur  autre  vie  of  which  there  was 
no  special  occupant  marked  out  by  the  grant,  belonged  to  the  person 
who  first  took  possession  of  it.  "  But  this  being  found  inconvenient, 
that  statute  was  passed  to  remedy  it;  and  it  enables  the  proprietor 
to  devise  it,  and  enacts,  That  if  no  devise  be  made  it  shall  be 
chargeable  in  the  hands  of  the  heir,  if  it  comes  to  him  by  reason 
of  a  special  occupancy,  as  assets  by  descent,  as  in  case  of  land 
in  fee  simple;  and  in  case  there  is  no  special  occupant,  it  shall  go  to 
the  executor  or  administrator  and  be  assets  in  their  hands."  In 
case  of  a  surplus,  if  not  devised  and  there  be  no  special  occupant, 
by  14  Geo.  2,  c.  20,  §  9,  such  surplus  is  distributed  as  personalty. 
"  Now  these  statutes  only  apply  in  cases  of  abstract  possession;  but 
here  there  is  a  special  occupant." 

On  the  other  side  it  was  urged  among  other  points  that  though  the 
heir  is  favored  over  the  devisee,  "  Yet  he  is  not  favored  under  the 
statute  of  frauds,"  and  that  if  this  estate  vested  in  the  heir  it  would 
only  be  liable  to  specialty  debts,  whereas  if  the  administrator  were 
entitled,  he  would  hold  it  for  all  the  creditors  of  the  intestate." 

Lord  Kenyon,  Ch.  J.  —  The  law  on  this  subject  has  been  truly 
stated  by  the  defendant's  counsel.  If  an  estate  pur  autre  vie  be 
limited  to  a  man,  his  heirs  and  assigns,  and  if  it  be  not  devised,  it 
goes  to  the  heirs,  under  the  statute  of  frauds,  and  is  liable  to  the 
same  debts  as  a  fee  simple  is.  Where  it  is  granted  to  a  person,  his 
executors,  administrators,  and  assigns,  the  executors  take  it  subject 
to  the  same  debts  as  personalty  of  any  other  description  is;  and  by 
the  14  Geo.  2,  it  is  distributable.  Now  in  this  case,  before  the 
plaintiff  can  recover  the  deeds  in  question,  she  must  show  a  title  to 


580      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

the  estate  in  respect  of  which  she  claims  the  deeds;  but  she  objects 
to  the  defendant's  retaining  them,  because  his  title,  if  any,  is  only 
equitable  and  cannot  be  inquired  into  in  a  court  of  law.  Now,  this 
court  either  has  or  has  not  a  right  to  inquire  in  whom  the  equitable 
title  is  vested;  and  in  either  way  of  considering  the  question  there 
must  be  judgment  against  the  plaintiff.  If  it  be  so  doubtful  a  point 
that  we  cannot  decide  it  in  a  court  of  law,  the  plaintiff  must  seek 
redress  in  equity;  because  the  rights  to  these  documents  must 
follow  the  title  to  the  estate,  and  if  we  can  examine  into  the 
title  the  defendant,  who  is  the  heir  at  law  of  the  tenant////-  autre  vie, 
must  have  judgment.  The  estate  in  question  was  conveyed  to  Wil- 
liams, his  heirs  and  assigns;  and  it  appears  by  the  deed  of  trust, 
which,  as  being  a  declaration  in  writing,  is  valid  by  the  statute  of 
frauds,  that  Williams  held  the  estate  in  trust  for  Atkinson,  his  heirs, 
executors,  administrators,  and  assigns.  The  first  limitation  is  to 
the  heirs;  and  in  the  ordinary  course  of  this  species  of  property  it 
goes  to  the  heir  at  law,  because  it  is  a  real  estate.  Then  it  is  urged, 
that  we  ought  to  exclude  the  heir,  in  order  to  let  in  a  more  numerous 
class  of  creditors;  but  however  convenient  it  might  be  if  such  were 
the  law,  when  we  are  deciding  according  to  law,  we  must  take  care 
not  to  infringe  one  of  its  first  ruies;  and  here  the  heir  at  law  is 
entitled  to  the  estate  as  a  special  occupant;  and  has  consequently 
a  right  to  detain  the  possession  of  those  documents  which  belong  to 
the  estate. 

Judgment  for  the  defendant. 


(3.)    The  modern  statutes. 

REYNOLDS  v.  COLLINS.1 

3  Hill(N.  Y.),  441.  —  1842. 
[Reported  herein  at  p.  13.] 


1  For  the  present  New  York  Statute  see  the  New  York  Real  Property  Law, 
§  24.  In  Michigan  the  executor  takes  the  residue.  In  Massachusetts  and 
several  other  states  the  estate  pur  autre  vie  is  realty  after  the  death  of  the  first 
taker  and  descends  lo  his  heir  in  the  same  manner  as  a  fee-simple.  Pub.  Stat. 
Mass.  (1882),  chap.  125,  §  1. 

For  the  mode  of  ascertaining  the  death  of  the  cestui  que  vie  or  of  a  life  tenant 
in  N.  Y.,  see  Code  Civ.  Proc,  §§  2302-2319.  For  the  statutory  presumptions  as 
to  the  death  of  a  person  on  whose  life  an  estate  in  real  property  depends,  see 
;•  841  Id.  —  Ed. 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     581 
c.  Conventional  and  legal  life  estates. 

Mccormick  harvesting  machine  co.  v.  gates. 

75  Iowa,  343.  —  1888. 
[Reported  herein  at  p.  581. J1 


WATSON  v.  WATSON. 

13  Connecticut,  83.  —  1839. 

[Reported  herein  at  p.  626.] 


d.  Incidents  of  life  estates. 

(1.)  Alienability  —  Voluntary  and  Involuntary.5 

(a.)  Restraints  upon  alienation} 

Mccormick  harvesting  machine  co.  v.  gates. 

75  Iowa,  343.  —  1888. 

Suit  in  equity  to  subject  certain  real  estate  to  the  payment  of  a 
judgment  against  defendant.  A  demurrer  to  the  petition  was  over- 
ruled.    Defendant  appeals. 

Seevers,  C.  J. — The  plaintiff  obtained  a  judgment  against  the 
defendant  A.  C.  Gates,  and  in  this  action  seeks  to  subject  certain 
real  estate,  which  said  Gates  has  a  title  to,  or  interest  in,  to  the 
payment  of  said  judgment.  Whatever  right  or  interest  A.  C.  Gates 
may  have  in  the  real  estate  was  derived  under  the  will  of  E.  M, 
Gates,  and  it  is  as  follows:  "  I  have  placed  my  son,  Alvin  C.  Gates. 
on  a  farm  near  Colfax,  in  said  county,  described  as  the  southwest 
quarter,  and  the  north  half  of  the  southeast  quarter  of  sec- 
tiDn  eleven,  township  seventy-nine,  range  twenty-one,  situated 
in  said  Jasper  county,  State  of  Iowa,  which  it  is  my  will  that  he 
occupy  and  enjoy  during  his  natural  life,  but  without  the  power 
or  ability  to  convey  or  incumber  the  same,  and  that  its  productions 
and  rents  are  intended  by  me  to  insure  a  support  for  himself  and  his 
family;  and  it  is  not  my  will  that  he  have  the  power  to  mortgage 

1  See  also  cases  under  "  2  "  below.  —  Ed. 

2  For  cases  of  voluntary  alienation,  see  supra.  Compare  with  cases  on  alien- 
ability of  a  fee,  pp.  560-574,  supra.  —  Ed. 

3  Not  involving  forfeiture.     See  p.  561,  supra.  —  Ed. 


582      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

or  incumber  the  rents,  profits  or  productions  of  said  farm,  either 
above  or  underground,  or  that  the  same  be  subject  to  attachment  or 
levy  for  the  debts  of  said  Alvin.  It  is  my  will  that  he  have  such  an 
estate  as  will  allow  of  his  farming  the  same  himself  or  renting  to 
others,  or  as  will  allow  him  to  mine  the  coal  that  is  supposed  to  be 
under  it,  or  contract  with  others  to  mine  it,  so  that  nothing  is  done 
which  will  allow  the  income  from  the  same  to  escape  from  the  said 
Alvin  or  his  said  family.  And  it  is  my  will  that,  upon  the  decease 
of  said  Alvin,  the  title  to  said  land  descend  to  Gien  Gates,  daughter 
of  said  Alvin,  if  she  is  the  only  child  of  his  then  living,  or  jointly  to 
said  Glen  and  any  other  child  or  children  that  may  be  born  to  said 
Alvin,  to  share  and  share  alike;  and  it  is  my  will  that  if  no  children 
of  said  Alvin  are  living  at  the  time  of  his  decease,  that  then  and  in 
that  case,  the  title  in  fee-simple  to  vest  in  my  sons,  Sumner  E.  and 
Lorin  A.  Gates,  and,  if  they  are  not  living,  in  their  legal  representa- 
tives." The  question  to  be  determined  is  whether  A.  C.  Gates  has 
such  an  interest  in  the  land  as  can  be  alienated  or  sold  on  execu- 
tion for  debts  created  by  him.  It  is  stated  in  the  will  that  the  tes- 
tator had  placed  A.  C.  Gates  on  the  land,  and  he  was  to  "occupy  and 
enjoy  it  during  his  natural  life."  Conceding  that  there  is  no  qualify- 
ing provision  in  the  will,  this  is  a  devise  of  a  life  estate.  2  Jarm. 
Wills  (5th  ed.),  404;  2  Washb.  Real  Prop.  (3d  ed.),  450;  Reed  v. 
Reed,  9  Mass.  372;  Blanchard  v.  Brooks,  12  Pick.  63;  Lewis  v.  Palmer, 
46  Conn.  460;  Bowman  v.  Pinkham,  71  Me.  295;  but  such  devise  is 
coupled  with  conditions;  it  being  provided  that  A.  C.  Gates  shall 
not  convey  nor  incumber  the  land  or  the  rents  and  profits,  nor 
shall  the  same  be  subject  to  attachment  or  levy  for  the  debts  of 
said  A.  C.  Gates.  Counsel  for  the  appellee  insist  that,  as  a  life 
estate  is  vested  in  A.  C.  Gates,  the  provision  against  the  alienation 
by  him  or  through  judicial  process  is  void,  because  it  is  inconsistent 
with  the  estate  vested  in  him;  that  is  to  say,  the  argument  is,  if  a 
person  is  vested  with  an  estate  for  life  or  in  fee  simple  of  real  estate, 
he  must  necessarily  be  vested  with  the  right  to  alienate  such  estate, 
and  that  such  right  cannot  be  in  any  respect  controlled.  If  the 
power  to  alienate  is  restricted,  the  estate  ceases  to  be  an  absolute  one, 
whether  it  be  for  life  or  in  fee  simple.  In  this  respect  there  is  no 
difference  in  the  two  estates;  both  are  absolute,  or  neither  exists. 
The  authorities,  without  serious  conflict,  except  as  hereafter  indi- 
<  ated,  are  in  accord  upon  this  subject,  and  sustain  the  views  above 
expressed.  2  Jarm.  Wills  (5th  ed.),  538;  1  Perry,  Trusts,  §  386; 
Blackstone  lunik  v.  Davis,  2  Pick.  42;  Deering  v.  Tucker,  55  Me. 
284;  Keysets  Appeal,  57  Pa.  St.  236;  McCleary  v.  Ellis,  54  Iowa, 
311.      We    have   doubts    whether   any   adjudged   case   can    be   found 


II.   I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.      583 

which  holds  otherwise,  unless  the  legal  title  to  the  property  has  been 
vested  in  a  trustee,  for  the  use,  under  specified  conditions,  of  the 
beneficiary.  Many  such  cases  have  been  cited  by  counsel  for  the 
appellants,  but  they  are  clearly  distinguishable,  unless  it  can  be  said 
that  under  the  will  in  question  a  trust  estate  was  created.  But  it  is 
too  clear  for  controversy,  we  think,  that  a  life  estate  was  vested  in 
A.  C.  Gates.  He  could  not  hold  such  estate  in  trust  for  himself. 
The  two  estates  are  inconsistent,  and  cannot  exist  in  the  same  per- 
son at  the  same  time.  In  fact,  the  will  does  not  create  a  trust  estate, 
but  vests  an  estate  for  life  in  A.  C.  Gates. 

The  petittion  states  that  an  execution  was  issued  on  the  judgment 
and  returned  "  No  property  found."  This,  being  admitted  by  the 
demurrer,  constitutes  a  sufficient  basis  for  and  warrants  this  pro- 
ceeding in  equity  to  determine  the  nature  and  extent  of  the  estate 
of  A.  C.  Gates  in  the  property  in  controversy.  The  demurrer  was 
properly  overruled,  and  the  judgment  of  the  court  subjecting  the 
life  estate  to  the  payment  of  the  judgment  must  be 

Affirmed.1 


TILLINGHAST  v.  BRADFORD. 
5  Rhode  Island,  205.  — 1858. 

Ames,  C.  J.  — The  demurrer  to  this  bill  is  attempted  to  be  sup- 
ported, substantially,  upon  two  grounds:  First,  that  Hezekiah 
Sabin,  Jr.,  had  not  such  an  equitable  interest,  under  his  father's 
will,  in  the  trust  property  in  question,  that  he  could  aliene  the  same, 
to  the  plaintiff  in  trust  for  his  creditors;  and,  second,  that  in  legal 
intendment  he  did  not,  by  the  assignment  executed  by  him  under 
the  poor  debtor's  act,  aliene  the  same  to  the  plaintiff  upon  such 
trust. 

The  nature  of  the  debtor's  interest  in  the  trust  property,  under 
his  father's  will,  was  an  equitable  estate  for  life  with  a  power  of  dis- 
posing of  the  remainder  in  fee  by  will;  in  default  of  such  disposition, 
such  remainder  to  be  conveyed  to  his  heirs  at  law;  there  being  also 
a  clause  in  the  will  against  anticipation  and  alienation  of  the  rents 

1  This  case  lays  down  the  settled  rule  as  to  restraints  (not  involving  forfeiture) 
upon  the  alienation  of  legal  life  estates.  Of  course  there  exists  here,  as  in  the 
case  of  fees,  an  exception  in  favor  of  married  women  having  a  separate  estate, 
legal  or  equitable,  subject  to  a  restraint  on  alienation.  See  Fears  v.  Brooks, 
supra,  p.  571.  See  Gray's  "  Restraints  on  Alienation,"  §§  134,  140.  The 
cases  which  follow  are  intended  to  indicate  the  conflict  of  authority  as  to  the 
validity  of  such  restraints  in  the  case  of  trusts  where  the  interest  of  the  bene- 
ciarv  is  in  the  nature  of  a  life  estate.  —  Ed. 


584      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

and  profits  during  the  debtor's  life.  It  is  quite  clear,  that  it  was  the 
intention  of  the  testator  to  make  an  alimentary  provision  for  his  son 
during  life,  which  should  give  him  all  the  advantages  of  an  estate 
in  fee,  without  the  legal  incidents  of  such  an  estate,  alienability, 
unless  by  will,  and  subjectiveness  to  the  payment  of  the  son's  debts. 
Such  restraints,  however,  are  so  opposed  to  the  nature  of  prop- 
erty—  and  so  far  as  subjectiveness  to  debts  is  concerned,  to  the 
honest  policy  of  the  law  —  as  to  be  totally  void,  unless,  indeed, 
which  is  not  the  case  here,  in  the  event  of  its  being  attempted  to 
be  aliened,  or  seized  for  debts,  it  is  given  over  by  the  testator  to 
some  one  else.  This  has  been  the  settled  doctrine  of  a  court  of 
chancery,  at  least  since  Brandon  v .  Robinson,  18  Ves.  429;  and  in 
application  to  such  a  case  as  this,  is  so  honest  and  just  that  we  would 
not  change  it  if  we  could.  Certainly,  no  man  should  have  an  estate 
to  live  on,  but  not  an  estate  to  pay  his  debts  with.  Certainly,  prop- 
erty available  for  the  purposes  of  pleasure  or  profit,  should  be  also 
amenable  to  the  demands  of  justice.' 


STEIB  v.  WHITEHEAD, 
in  Illinois,  247.  —  1884. 


Mulkey,  J. — Asahel  Gridley,  by  his  last  will  and  testament, 
devised  to  trustees  certain  valuable  real  estate,  upon  the  following 
trusts,  namely:  "  To  keep  said  lands  and  tenements  well  rented; 
to  make  reasonable  repairs  upon  the  same;  to  pay  promptly  all 
taxes  and  assessments  thereon;  to  keep  the  buildings  thereon  rea- 
sonably insured  against  damages  by  fire;  to  pay  over  all  remaining 
rents  and  income  in  cash,  into  the  hands  of  my  said  daughter,  Juliet, 
in  person,  and  not  upon  any  written  or  verbal  order,  nor  upon  any 
assignment  or  transfer  by  the  said  Juliet.  At  the  death  of  the  said 
Juliet  said  trust  estate  shall  cease  and  be  determined,  and  the  said 
lands  shall  vest  in  the  heirs  of  the  body  of  the  said  Juliet,  and  in 
default  of  such  heirs,  shall  descend  to  the  heirs  of  my  body  then  living 
according  to  the  laws  of  Illinois  then  in  force  regulating  descents." 
After  the  death  of  Gridley,  his  will  was  duly  probated,  and  no  ques- 
tion is  made  as  to  its  form,  or  the  capacity  of  the  testator  to  make 

1  See  also  the  early  New  York  case  of  Bryan  v.  Knickerbackery  1  Barb.  Ch.  409, 
decided  on  principles  in  force  before  the  R.  S.  of  182S-30.  North  Carolina, 
1  Carolina,  Georgia,  Alabama,  Ohio  and  Kentucky  also  have  decisions  in 
accord  with  the  case  above.  See  Gray's  Restraints,  £§  178-190I.  This  was  also 
the  English  rule.  For  a  summary  statement  of  the  English  law,  see  Gray's 
Restrain!'-,  \   167J.  —  ED. 


II.   I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     585 

a  will.  The  trustees  named  in  the  will  having  refused  to  act,  by  a 
proper  proceeding  in  chancery,  William  H.  Whitehead  the  defend- 
ant in  error,  was  duly  appointed  trustee  in  their  stead,  and  there- 
upon took  possession  of  the  devised  premises  and  otherwise  assumed 
the  duties  of  the  trust.  Certain  moneys,  being  a  part  of  the  rents 
and  profits  of  the  estate,  having  come  into  his  hands,  as  trustee,  and 
which,  under  the  provisions  of  the  will,  it  was  his  duty  to  pay  over 
to  Juliet,  the  daughter,  were  attached  in  his  hands  by  one  of  her 
creditors.  The  trustee  appeared  and  filed  an  answer,  as  garnishee, 
setting  up  the  trust  and  the  special  provisions  of  the  will  above  cited, 
and  the  question  presented  for  determination,  is,  whether  the  money 
thus  held  by  him  was  subject  to  garnishment. 

The  authorities  are  not  in  accord  on  this  subject.  Under  the  rule 
as  laid  down  by  the  courts  of  England,  and  by  the  courts  of  final  resort 
in  a  number  of  the  States  of  the  Union,  the  fund  attached  would 
clearly  be  subject,  in  equity,  to  the  payment  of  the  daughter's  debts. 
Tillinghast  v.  Bradford,  5  R.  I.  205;  Smith  v.  Moore,  37  Ala.  330; 
Heath  v.  Bishop,  4  Rich.  Eq.  46;  Mcllvain  v.  Smith,  42  Mo.  45. 
A  contrary  rule  prevails  in  Pennsylvania,  Massachusetts,  and  per- 
haps other  States,  which  seems  to  be  supported  b)'  the  reasoning 
of  the  Supreme  Court  of  the  United  States  in  Nichols  v.  Eaton,  91 
U.S.  716.  The  question,  so  far  as  we  are  advised,  is  a  new  one 
in  this  court,  and  in  view  of  the  respectable  authority  to  be  found 
on  either  side  of  it,  we  feel  at  liberty  to  adopt  that  view  which  is 
nearest  in  accord  with  our  convictions  of  right  and  a  sound  public 
policy. 

That  it  was  the  intention  of  the  testator  to  place  the  net  income 
of  the  property  beyond  the  control  of  his  daughter  and  her  creditors 
while  in  the  hands  of  the  trustee,  is  manifest,  and  we  perceive  no 
good  reason,  nor  has  any  been  suggested,  why  this  intention  should 
not  be  given  effect.  We  fully  recognize  the  general  proposition 
that  one  cannot  make  an  absolute  gift  or  other  disposition  of  prop- 
erty, particularly  an  estate  in  fee,  and  yet  at  the  same  time  impose 
such  restrictions  and  limitations  upon  its  use  and  enjoyment  as  to 
defeat  the  object  of  the  gift  itself,  for  that  would  be,  in  effect,  to 
give  and  not  to  give,  in  the  same  breath.  Nor  do  we  at  all  question 
the  general  principle  that  upon  the  absolute  transfer  of  an  estate, 
the  grantor  cannot,  by  any  restrictions  or  limitations  contained 
in  the  instrument  of  transfer,  defeat  or  annul  the  legal  consequences 
which  the  law  annexes  to  the  estate  thus  transferred.  If,  for 
instance,  upon  the  transfer  of  an  estate  in  fee,  the  conveyance  should 
provide  that  the  estate  thereby  conveyed  should  not  be  subject  to 
dower  or  to  curtesy,  or  that  it  should  not  descend  to  the  heirs  gen- 


586      ESTATES    AS    TO    QUANTITY    AND    QUALITY.       [PT.  IV.  CH.    I. 

eral  of  the  grantee  upon  his  dying  intestate,  or  that  the  grantee 
should  have  no  power  of  disposition  over  it,  the  provision,  in  either 
of  these  cases,  would  clearly  be  inoperative  and  void,  because  the  act 
or  thing  forbidden  is  a  right  or  incident  which  the  law  annexes  to 
every  estate  in  fee  simple,  and  to  give  effect  to  such  provisions 
would  be  simply  permitting  individuals  to  abrogate  and  annul  the 
law  of  the  State  by  mere  private  contract.  This  cannot  be  done. 
But  while  this  unquestionably  is  true,  it  does  not  necessarily  follow 
that  a  father  may  not,  by  will  or  otherwise,  make  such  reasonable 
disposition  of  his  property,  when  not  required  to  meet  any  duty  or 
obligation  of  his  own,  as  will  effectually  secure  to  his  child  a  com- 
petent support  for  life,  and  the  most  appropriate,  if  not  the  only, 
way  of  accomplishing  such  an  object  is  through  the  medium  of  a 
trust.  Yet  a  trust,  however  carefully  guarded  otherwise,  would  in 
many  cases  fall  far  short  of  the  object  of  its  creation,  if  the  father, 
in  such  case  has  no  power  to  provide  against  the  schemes  of  design- 
ing persons,  as  well  as  the  improvidence  of  the  child  itself.  If  the 
beneficiary  may  anticipate  the  income,  or  absolutely  sell  or  other- 
wise dispose  of  the  equitable  interest,  it  is  evident  the  whole  object 
of  the  settlor  is  liable  to  be  defeated.  If,  on  the  other  hand,  the 
author  of  the  trust  may  say,  as  was  done  in  this  case,  the  net  accu- 
mulations of  the  fund  shall  be  paid  only  into  the  hands  of  the  bene- 
ficiary, then  it  is  clear  the  object  of  the  trust  can  never  be  wholly 
defeated.  Whatever  the  reverses  of  fortune  may  be,  the  child  is 
provided  for,  and  is  effectually  placed  beyond  the  reach  of  unprinci- 
pled schemers  and  sharpers. 

The  tendency  of  present  legislation  is  to  soften  and  ameliorate, 
as  far  as  practicable,  the  hardships  and  privations  that  follow  in  the 
wake  of  poverty  and  financial  disaster.  The  courts  of  the  country, 
in  the  same  liberal  spirit,  have  almost  uniformly  given  full  effect  to 
such  legislation.  The  practical  results  of  this  tendency,  we  think, 
upon  the  whole,  have  been  beneficial,  and  we  are  not  inclined  to 
render  a  decision  in  this  case  which  may  be  regarded  as  a  retrograde 
movement.  The  creditors  of  the  daughter  have  no  ground  to  com- 
plain that  they  have  been  misled  or  wronged  in  consequence  of  the 
provision  made  for  her  by  her  father.  It  was  his  own  bounty,  and 
so  far  as  they  are  concerned  he  had  the  right  to  dispose  of  it  as  he 
pleased.  The  property  was  not  placed  in  her  possession  so  that 
she  might  appear  as  owner  when  she  was  not,  and  thereby  obtain 
credit.  An  examination  of  the  public  records  would  have  shown 
that  she  had  no  power  to  sell  or  assign  her  equitable  interest,  that 
the  extent  of  her  right  was  to  receive  the  net  accumulation  of  the 
trust  estate  from  the  hands  of  the  trustee,  and  that  these  accumu- 
lations did  not  bet  ome  absolutely  hers,  so  as  to  render  them  subject 
I        gal  process  for  her  debts,  until  actually  paid  to  her. 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE    ESTATES,     587 

The  McLean  Circuit  Court,  and  the  Appellate  Court  for  the  Third 
District,  having  reached  a  conclusion  in  accord  with  the  views  here 
presented,  the  judgment  will  be  affirmed. 

Judgment  affirmed.1 



LEGGETT  v.  PERKINS. 

2  New  York,  297.  —  1849. 

Ejectment.  —  Both  parties  claim  title  under  the  will  of  Gerardus 
Post,  deceased.  Defendant  is  lessee  of  the  trustee  appointed  by 
the  will.  Plaintiff  Susan  Leggett  is  one  of  the  beneficiaries  under  the 
trust  in  the  will,  but  now  claims  that  the  trustee  did  not  take  the 
legal  estate  and  that  the  trusts  were  void,  and  that  she  is  entitled  to 
the  possession  of  the  land.  Judgment  for  defendant  below.  Plain- 
tiff appeals. 

Gardiner,  J.  —  I  think  that  the  trustees  took  a  fee  in  the  premises 
in  question  by  implication. 

The  devise  to  the  daughters  of  the  testator  is  not  absolute,  but 
(in  the  language  of  the  will)  "  so  that  each  may  have  and  enjoy  the 
income  of  an  equal  fifth  thereof  during  their  several  natural  lives." 
The  testator  then  constitutes  his  executors  trustees  of  their  estate, 
authorizing  them  as  such  trustees  "  to  take  charge  of,  manage,  and 
improve  the  same  and  to  pay  over  to  them,  from  time  to  time,  the 
rents,  interest  and  net  income  thereof."  It  is  very  obvious  that  a 
legal  estate  in  the  premises  was  necessary  to  enable  the  trustee  to 
discharge  these  duties.  Oates  v.  Cook,  3  Burr.  R.  1684;  Doe  v. 
Woodhouse,  4  T.  R.  89,  92;  Fletcher  on  Trustees,  27;  Greenleaf's 
Cruise,  tit.  12,  Trust,  ch.  1,  §  14,  and  note;  Jickling's  Analogy,  p. 
15,  note.  To  put  the  matter  beyond  a  doubt,  the  testator  has  pro- 
vided that  the  net  income  should  be  paid  to  the  daughters  after  mar- 

1  But  one  cannot  make  such  a  settlement  in  his  own  favor  so  as  to  be  good 
against  creditors.  Ghormley  v.  Smith,  139  Pa.  St.  584;  Bank  v.  Windram, 
133  Mass.  175.  For  further  discussion  of  this  subject,  see  Nichols  v.  Eaton,  91 
U.  S.  716.  Besides  the  courts  of  the  United  States,  the  decisions  in  Pennsylvania, 
Massachusetts,  Maine,  Maryland,  Mississippi.  Vermont  and  Missouri  are  in 
accord  with  the  principal  case.  See  Gray's  "  Restraints  on  Alienation,"  §  178. 
The  doctrine  is  supposed  to  have  originated  in  Pennsylvania.  See  Gray,  §§  214- 
235n.  170-174.  In  several  States  there  is  a  statutory  system  of  "  spend- 
thrift trusts."  These  usually  follow  the  system  originated  in  New  York  by 
the  revisers  of  1830.  N.  Y.  R.  S.,  Part  II..  ch.  1,  Title  II.,  Art.  II  ,  §  55,  subd. 
3,  etc.  Some  New  York  cases  construing  these  statutes  follow  here.  See  for 
the  New  York  Statute  in  its  present  form,  N.  Y.  R.  P.  L.,  §§  76,  78,  80,  83,  85. 


588      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

riage  without  the  consent  of   their   husbands,  with   like  effect  as  if 
they  were  unmarried.     If  the  husband  took  an  estate  by  the  curtesy, 


as  he  would  if  the  fee  vested  in  the  daughter,  he  would  be  entitled .. 
to  the  rents  and  profits,  and  the  separate  provision  for  the  daughter 
would  be  wholly  ineffectual.  Greenleaf's  Cruise,  tit.  12,  ch.  1,  §  16; 
Doe  v.  Hoffman,  6  Adolph.  &  Ellis,  206;  2  Jarman  on  Wills,  202,  203, 
and  cases  cited.  Again,  if  the  trust  to  receive  rents  and  profits  and 
pay  them  over  to  the  daughters  is  authorized  by  the  third  subdi- 
vision of  the  55th  section  of  the  statute  of  "  Uses  and  Trusts,"  the 
whole  estate  in  law  and  equity,  by  the  60th  section,  vests  in  the 
trustees.  1  R.  &  S.  729,  §  55,  sub.  3,  §  60. '  If  not  authorized,  the 
trust  is  void,  whatever  may  have  been  the  intention  of  the  testator. 

Id.  727,  §  1. 

Whether  such  a  trust  is  within  the  statute  is  therefore  the  great 
■Jfcuestion  in  the  cause.  The  decision  of  the  chancellor  in  Gott  v. 
Cook,  affirmed  the  validity  of  a  trust  of  this  character.  7  Paige, 
523.  The  decree  in  that  case  was  pronounced  after  an  elaborate 
argument,  with  all  the  light  afforded  by  the  opinion  of  Judge  Sav- 
age, in  Coster  v.  Lorillard,  and  of  Judge  Bronson  in  Hatvley  v.  James, 
and  has  never  been  reversed  or  shaken  by  any  adjudication  in  this 
State,  to  my  knowledge.  As  trusts  are  the  peculiar  subject  of  equi- 
table cognizance,  the  principle  thus  established  has  become  practi- 
cally the  law  of  the  State.  The  same  construction  has  been  given  to 
the  statute  by  the  Superior  Court  of  the  city  of  New  York,  by  the 
Supreme  Court,  sitting  in  the  Sixth  district,  by  the  same  court  in  the 
First  district  in  Mason  v.  Jones,  the  decision  in  the  last  case  being 
affirmed  in  this  court  upon  an  equal  division  of  the  judges.  Nor  is 
this  all.  In  Parke  v.  Parke,  in  the  court  for  the  correction  of  errors, 
the  point  was  distinctly  presented,  and  the  validity  of  a  trust  of  this 
description  affirmed  by  their  judgment.  The  question  should  be  at 
rest  upon  authority.  The  conflicting  opinions  of  eminent  judges 
are  evidence  that  it  was  originally  a  doubtful  question;  and  no  one 
is  authorized  to  assume  now  that  he  is  infallibly  rights  to  whichever 
side  of  the  controversy  he  may  incline.  I  shall  adhere  to  the  deci- 
sions that  have  been  made,  because  upon  such  a  question  the  judg- 
ment of  the  court  of  last  resort  sustained  as  it  is  by  the  authority  of 
every  other  adjudication  made  upon  the  same  subject,  is  entitled  to 
respect  here.  If,  however,  the  question  is  deemed  open,  I  shall  fol- 
low those  decisions  because  I  think  them  right,  and  the  exposition 
they  have  given  to  the  statute  the  correct  one. 

I  shall  confine  myself  to  a  review  of  the  more  prominent  objec- 

1  Sec  §§  76  and  80,  N.  Y.  R.  P.  L.  —  Ed. 


II.   I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     589 

tions  urged  against  the  validity  of  a  trust  of  this  description.  1st. 
It  is  said  that  the  trust  authorized  by  the  statute  "  to  receive  the 
rents  and  profits  of  land,  and  to  apply  them  to  the  use  of  any  per- 
son," by  necessary  implication  clothes  the  trustee  with  a  discretion 
in  the  expenditure  of  the  fund;' that  a  trust  to  pay  over  the  rents 
and  profits  to  the  beneficiary,  deprives  the  trustee  of  all  discretion 
and  is  consequently  void.  It  should  be  remembered  in  considering 
this  proposition,  that  the  statute  in  reference  to  express  trusts  is 
merely  permissive.  It  creates  nothing.  We  might  infer  from  the 
argument  addressed  to  us,  that  the  Legislature  had  in  the  first 
instance  annulled  all  trusts,  and  then  proceeded  to  a  new  creation. 
It  is  more  correct  to  say  that  they  abolished  all  that  they  have  not 
recognized  as  existing.  The  trusts  preserved  have  their  foundation 
in  the  common  law,  and  their  effect  is  to  be  determined 
by  the  application  of  common-law  principles.  By  that  law  the 
trustee  must  apply  the  trust  fund  according  to  the  instructions  of 
its  author.  His  duty  is  the  same  now,  if  the  directions  given  do 
not  contravene  the  general  object  for  which  the  trust  is  authorized 
by  the  statute.  With  this  limitation  the  authority  of  the  donor  is  " 
as  absolute  now  as  before  the  statute.  Now  an  express  trust  may 
be  created  according  to  the  thirdsubdivision  of  the  55th  section, 
"  to  receive  and  apply  the  rents  and  profits  of  land  to  the  use  of  any 
person."  The  subject  is  the  rents  and  profits  of  land;  the  object, 
"an  application  to  the  use  of  any  person.  When  a  trust  is  created  of 
this  nature,  it  is  recognized  as  existing  with  all  its  common-law 
incidents.  The  relation  of  the  donor  and  trustee,  the  power  of  the 
former  and  the  duty  of  the  latter,  are  precisely  what  they  were  by 
the  common  law. 

The  statute  no  more  prescribed  the  mode  in  which  the  profits 
must  be  applied,  than  the  manner  in  which  they  are  to  be  received. 
The  details  may  be  arranged  by  the  donor  in  both  cases  for  himself, 
or  left  to  the  discretion  of  the  trustee.  If  the  trustee  may  apply 
the  fund  to  the  education  of  the  beneficiary,  where  no  instructions 
are  given,  (and  this  is  conceded,)  the  creator  of  the  trust  may  direct 
it  to  be  done.  Because,  in  either  case,  the  application  would  be  to 
the  use  of  the  person  designated  and  within  the  letter  and  spirit  of 
the  statute.  It  is  believed  that  in  all  cases,  before  and  since  the  \ 
statute,  the  rule  is  uniform,  that  the  creator  of  the  trust  may  direct  1 
specifically, the-  performance  of  those  things  which  the  trustee, 
whose  'authority  is  derived  from  him,  might  himself  perform,  in 
the  lawful  execution  of  the  trust,  if  no  specific  directions  were  given. 
The  proposition  under  review  annuls  this  power  of  the  donor.  It 
transfers  to  the  trustee  alone,  a  discretion  in  the  application  of  the 


\  ' 


59O      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

fund,  which  the  donor  could  exercise  himself  by  the  rules  of  the 
common  law,  and  declares  that  the  relation  between  the  trustee  and 
beneficiary  is  fixed  by  statute,  and  must  be  the  same  in  all  cases,  any 
differences  in  the  character  or  circumstances  of  the  latter  to  the 
contrary  notwithstanding.  This  theory  is  to  be  established,  if  at 
all,  by  implication.  The  statute  says  nothing  of  the  discretion  of 
the  trustee;  it  speaks  only  of  the  power  of  the  creator  of  the  trust. 
It  does  not  in  terms  compel  a  donor,  who  may  be  supposed  to  feel 
the  strongest  interest  in  the  beneficiary,  and  to  possess  an  equal 
knowledge  of  his  character  and  necessities,  to  lean  exclusively  upon 
the  discretion  of  a  trustee,  in  the  administration  of  his  bounty. 
The  implication  should  be  strong,  that  leads  to  such  results.  I  will 
glance  briefly  at  the  argument  by  which  it  is  maintained. 

And  first,  it  is  alleged  that  the  Legislature  had  in  view  a  particular 
class  or  description  of  persons  as  beneficiaries.  "  Persons  who 
could  not  safely  be  trusted  with  the  management  of  their  own  affairs, 
and  for  that  reason  a  trustee  was  allowed  to  make  the  application 
for  them."  Hawley  v.  James,  16  Wend.  157;  14  Id.  321.  The 
answer  to  this  view  is  to  be  found  in  the  law  itself.  The  rents  and 
profits  arising  from  such  a  trust  may  be  applied  to  the  use  of  "  any 
person,"  without  regard  to  his  condition,  habits,  character,  or 
mental  capacity.  No  judge  or  lawyer  has  ventured  to  deny  this 
directly,  or  to  assert  that  a  trust  for  the  benefit  of  a  millionaire,  in 
the  full  vigor  of  health  and  intellect,  is  not  as  effectual,  as  though 
its  subject  was  a  lunatic  pauper.  And  yet  to  support  this  construc- 
tion it  has  been  constantly  assumed  that  the  Legislature,  in  this 
respect,  intended  not  only  what  they  have  not  said,  but  the  reverse 
of  what  they  have  declared.  This  assumption,  indeed,  is  indis- 
pensable to  the  support  of  the  hypothesis  under  review.  According 
to  that,  the  trustee,  as  remarked,  must  always  sustain  the  same  rela- 
tion to  the  cestui  que  trust.  He  is  to  exercise  a  kind  of  guardianship 
in  the  expenditure  of  the  fund,  (16  Wend.  158,)  and  a  guardianship 
of  precisely  the  same  character  in  all  cases.  Such  a  doctrine  would 
be  anything  but  a  necessary  implication  from  a  statute,  which 
admitted  all  persons  without  exception  to  the  class  of  beneficiaries. 

To  give  plausibility  to  a  doctrine  which  places  all  cestuis  que  trustent 
upon  the  same  statute  level  of  incapacity,  as  to  the  management  of 
their  own  affairs,  a  common  disability  must  in  some  way  be  estab- 
lished. Hence  the  attempt  in  all  the  arguments  addressed  to  us, 
and  all  the  opinions  delivered  upon  this  subject,  sometimes  from 
the  history  of  this  section,  and  sometimes  from  its  language,  to 
group  the  beneficiaries  into  classes,  between  which  there  was  some 
supposed   resemblance,  and  as  to  all  of  whom,  a  guardianship  of  the 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     591 

kind  alluded  to  might  exist  without  manifest  inconvenience  or 
absurdity.  14  Wend.  321.  It  is  this  preconceived  notion,  which 
has  induced  those  by  whom  it  was  entertained,  to  restrict  the 
obvious  meaning  of  the  words  occurring  in  the  third  subdivision  of 
this  section.  "  Apply,"  for  example,  which  means  the  act  of  apply- 
ing, and  includes  obviously  any  act  of  the  trustee  by  which  the  trust 
fund  is  applied  for  the  benefit  of  the  cestui  que  trust,  whether 
expressly  directed  by  the  donor,  or  performed  according  to  the 
discretion  of  the  trustee,  is  limited  to  the  latter  exclusively;  and 
the  trustee  by  force  of  it  constituted,  in  all  cases,  the  discretionary 
almoner  of  the  donor's  bounty.  "  In  no  other  way,"  it  is  said, 
"  can  we  give  force  to  the  word  apply."  It  seems  to  me  very  clear, 
that  the  term  is  robbed  of  half  its  power  by  the  restriction.  "  Use," 
also  one  of  the  most  comprehensive  words  in  our  language,  and 
adopted  by  the  revisers  for  that  reason,  is  in  this  way  held  to  mean 
a  sort  of  benefit,  conferred  according  to  the  discretion  of  a  trustee; 
and  "  any  person,"  as  we  have  seen,  to  stand  for  some  persons  in 
particular. 

There  is  nothing  in  the  history  of  the  law  to  give  countenance  to 
this  construction.  The  section,  as  originally  framed  and  passed, 
authorized  a  trust  "  to  receive  the  rents  and  profits  of  lands,  and 
apply  them  to  the  education  and  support,  or  either  of  them,  of  any 
person,"  etc.  By  this  provision,  the  trust  was  restricted  to  certain 
definite  uses,  education  and  support,  but  without  limitation  as  to 
persons.  A  few  months'  reflection  satisfied  the  revisers  that  a  trust 
thus  limited  would  not  answer  the  exigencies  of  families  or  society, 
and  on  the  20th  of  April  following,  they  recommended  the  substi- 
tution of  "  use,"  for  "  education  and  support,  or  either  of  them." 
They  remark  in  their  report,  that  the  word  "  use  "  includes  "  educa- 
tion and  support,"  and  that  "it  will  also  include  other  purposes 
which  ought  to  be  provided  for."  The  revisers  sought  to  generalize 
what  was  before  specific.  The  construction  in  question  reverses 
this  order,  and  gives  to  general  terms  a  special  and  restricted 
application. 

A  third  reason  assigned  is,  that  a  trust  created  in  the  language  of 
this  section,  or  by  equivalent  words,  would  vest  a  discretion  in  the 
trustee  as  to  the  application  of  the  trust  fund ;  and  hence  it  is  inferred, 
that  such  discretion  is  in  all  cases  essential.  One  obvious  answer 
to  this  position  is,  that  it  was  not  the  object  of  the  Legislature  to 
prescribe  a  formula  to  be  followed  in  the  creation  of  a  trust,  but  to 
designate  in  general  terms  the  purposes  for  which  they  might  be 
created.  3  R.  S.  582.  These  general  terms  were  intended  to 
include  within  them  an  indefinite  number  of  particular  and  special 


592      ESTATES   AS   TO  QUANTITY    AND    QUALITY.       [PT.  IV.  CH.   I. 

trusts,  adapted  to  exigencies  of  families,  or  the  wants  of  individuals. 
If  these  terms  are  transferred  from  the  statute  to  a  trust  deed,  or  a 
devise,  they  must  necessarily  give,  as  to  all  these  particulars,  a 
discretion  to  the  trustee.  For,  in  such  cases  the  trust  would  confer 
upon  the  trustee  all  the  power  which  the  law  conferred  upon  the 
author  of  the  trust.  But  it  by  no  means  follows  that  the  lawmakers 
intended  that  in  all  cases  he  should  possess  such  discretion,  under 
penalty  of  avoiding  the  trust.  If  the  statute  should  authorize  a 
married  woman  to  execute  a  power  of  attorney,  to  convey  her  inter- 
est in  real  estate,  it  might  be  as  plausibly  contended,  that  she  could 
not  designate  the  vendee,  the  terms  of  the  sale,  or  the  amount  of 
the  consideration,  because  a  power  in  the  words  of  the  statute,  or 
in  equivalent  terms,  would  give  a  discretion  to  the  attorney  in  all 
these  particulars.  By  adopting  the  language  of  this  subdivision, 
the  trustee,  for  example,  must  apply  all  the  rents  and  profits  to  the 
use  of.  the  cestui  que  use.  But  Judge  Bronson,  in  Haivley  v.  James, 
remarks,  it  can  make  no  difference  whether  the  trust  extends  to  all 
the  rents  and  profits,  or  is  confined  to  a  specified  sum  of  money. 
The  donor  may  settle  for  himself  the  amount  to  be  applied. 

But  there  is  an  obvious  difference  in  the  legal  effect  of  an  instru- 
ment requiring  the  trustee  to  apply  the  rents  and  profits  of  the  lands 
conveyed,  and  one  directing  "  a  specific  sum  of  money  "  to  be 
applied  out  of  those  rents  and  profits,  and  yet  both  are  within  the 
statute,  by  the  concession  of  the  advocates  of  the  construction  in 
question.  So  the  trust  authorized  by  the  same  section  of  the  statute, 
to  sell  lands  for  the  benefit  of  creditors,  if  created  in  the  language 
of  the  statute,  would  oblige  the  trustee  to  sell  for  cash,  and  to  dis- 
tribute the  fund,  when  received, //t>  rata  among  all  the  creditors  of 
the  assignor.  But  the  latter  may,  notwithstanding,  direct  that  the 
proceeds  be  applied  in  discharge  of  a  single  debt,  or  a  class  of  debts, 
in  preference  to  others  of  the  same  character.  The  trusts,  although 
different  in  terms  and  in  their  legal  consequence,  are  both  valid, 
and,  for  the  same  reason,  they  are  each  of  them  within  the  general 
purpose  sanctioned  by  the  Legislature. 

Another,  and  to  my  mind  conclusive,  answer  to  this  proposition 
is,  that  under  a  trust  created  in  the  language  of  the  statute,  the 
discretion  of  the  trustee  (if  it  exist  at  all)  is  wholly  unlimited  as  to 
the  mode  in  which  the  trust  fund  is  to  be  applied  to  the  use  of  the 
cestui  que  trust.  He  may  expend  it  for  the  education,  or  support,  or 
to  gratify  the  taste,  or  caprice,  of  the  beneficiary.  The  doctrine  is, 
that  the  discretion  implied  from  the  terms  of  the  statute,  is  essential 
to  the  validity  of  the  trust.  If  so,  the  donor  can  no  more  restrict 
that  discretion  than  he  can  annihilate  it.      But  it  is  conceded  that 


II.   i.]      FREEHOLDS  NOT  OF   INHERITANCE  —  LIFE  ESTATES.     593 

he  may  direct  a  specific  sum  of  money,  less  than  the  whole  rents  and 
profits,  to  be  applied.  This  is  a  limitation  of  power.  Again  the 
revisers  say  that  "  Use  includes  education  and  support;  "  of  course, 
if  the  statute  is  what  they  intended  it  should  be,  a  trust  to  apply  a 
specific  sum  for  the  education  of  any  person  designated,  would  be 
valid.  But  this  is  confining  the  trustee  to  a  single  use,  instead  of 
leaving  to  him,  in  the  language  of  this  section,  the  whole  class  of 
possible  benefits,  from  which  he  might  select  one,  or  all,  at  his 
discretion. 

Again,  if  a  discretion  is  an  essential  element  of  a  legal  trust,  I  see 
no  way  to  escape  the  conclusion  that  the  trustee  must  administer 
to  the  necessities  of  the  cestui  que  trust,  from  day  to  day,  and  hour 
to  hour.  To  avoid  this  absurdity,  which  was  pointed  out  by  the 
chancellor,  it  was  distinctly  admitted  upon  the  argument,  that  the 
trustee  was  at  liberty  to  pay  over  to  the  beneficiary,  from  time  to 
time,  sums  of  money  "  to  be  applied  by  him  to  his  own  use."  This 
concession  is  a  virtual  surrender  of  the  whole  controversy.  For  if 
the  discretion  of  the  trustee  is  indispensable,  in  the  application  of 
the  fund,  he  cannot  delegate  it  to  another,  and  certainly  not  to  the 
beneficiary.  In  a  word,  the  payment  of  a  sum  of  money  to  the 
cestui  que  trust,  is  an  application  to  his  use,  or  it  is  not;  if  the 
former,  it  is  authorized  by  the  statute,  and  may  be  directed  in 
the  trust;  if  not,  the  trustee  cannot  make  such  payment  in  his  own 
discretion  or  otherwise,  without  a  violation  of  duty. 

What,  then,  is  an  application  "  to  the  use  of  a  person,"  within  the 
statute?  The  advocates  for  a  discretionary  power  in  trustees  over 
the  fund,  have  told  us  that  a  payment  over  is  not  such  an  applica- 
tion, but  have  not  informed  us  in  what  it  consists.  "  To  apply  to 
the  use  of,"  is  to  execute  the  trust  pro  tanto.  It  is  such  an  appli- 
cation as  will  discharge  the  trustee  from  all  responsibility  on  account 
of  the  fund,  or  the  part  of  it  thus  applied.  This  requires,  1st.  The 
authority,  express  or  implied,  of  the  creator  of  the  trust.  2d.  An 
act  of  the  trustee  in  pursuance  thereof.  3d.  The  assent,  in  some 
form,  of  the  beneficiary,  where  he  has  legal  capacity;  or  of  his  com- 
mittee or  guardian,  where  he  has  not.  An  application  "  to  the  use  " 
of  a  person,  like  a  delivery,  or  payment,  implies  an  acceptance. 
The  delivery  of  clothing  to  a  madman,  would  no  more  be  an  appli- 
cation to  his  use  than  the  payment  of  money;  for  he  has  not  the 
capacity  to  assent  to  either.  The  nature  of  the  property  applied  is 
of  no  consequence,  whether  money  or  chattels.  Judge  Savage 
observed  in  Lorillard's  Case,  "  that  to  apply  rents  and  profits  to  the 
use,  does  not  mean  to  pay  them  over  to  the  cestui  que  trust.  In 
that  case   he   would   apply  them   himself  to  his  own  use."     In  what 

LAW  OF  PROP.    IN  LAND  —  38 


594      ESTATES   AS   TO   QUANTITY   AND   QUALITY.      [PT.  IV.  CH.  I. 

other  way  can  they  be  applied?  If  the  learned  judge  had  pursued 
the  subject,  he  would  have  discovered  that  his  remark  applied  with 
equal  force,  not  only  to  a  payment  of  money,  but  to  every  species  of 
property,  whether  procured  by  the  trustee  or  otherwise.  In  the 
final  analysis  it  would  be  found  that  the  beneficiary  must  in  all  cases 
apply  the  thing  bestowed  to  his  own  use.  The  reason  is,  that  the 
donee  cannot  be  compelled  to  accept  the  gift,  or  any  part  of  it.  The 
trustee  has  to  deal  with  free  agents,  when  the  beneficiaries  have 
legal  capacity,  and  with  their  legal  guardians  when  they  have  not. 
He  is  trustee  of  the  fund  designed  for  their  use,  not  a  committee  of 
their  persons.  If  they  refuse  to  accept  what  he  has  provided,  and 
is  ready  to  deliver,  whether  money,  or  necessaries,  there  is  no  appli- 
cation; the  trust  is  unexecuted;  the  property  remains  in  the  trustee, 
subject  to  his  control,  and  for  it  he  alone  is  responsible.  On  the 
other  hand,  if  the  trustee,  in  pursuance  of  an  authority  written  out 
in  the  trust  deed,  or  implied  from  it,  delivers  to  the  cestui  que  trust 
money  or  other  property  for  his  use,  and  it  is  accepted  by  the  latter, 
the  trust  is  so  far  executed,  the  application  made,  and  if  within  the 
next  hour,  the  gift  is  squandered  or  destroyed,  the  trustee  is 
exonerated. 

Again,  it  is  said  that  if  a  person  is  competent  to  take  care  of  the 
money  when  paid  over,  there  is  no  reason  why  the  estate  should 
not  be  transferred  to  him  out  of  which  it  is  raised.  The  same  rea- 
son might  be  urged  against  trusts  of  personal  property  of  this  kind, 
which  are  confessedly  authorized  by  the  statute.  But  to  be  influ- 
enced by  this  suggestion,  we  must  shut  our  eyes  to  the  light  of 
history  and  experience.  Every  one  knows  that  there  are  individuals 
in  every  society,  who  are  neither  imbecile  nor  profligate,  nor  united 
with  those  who  are  so,  who  could  properly  dispose  of  a  fixed  income, 
and  yet  who  ought  not,  from  prudential  reasons,  to  control  the 
capital  out  of  which  it  is  raised.  The  difficulty  does  not  lie  in  a 
want  of  capacity;  but  it  is  to  be  found  in  their  inexperience,  the 
relation  which  they  sustain  to  others,  and  sometimes  in  the  nature 
of  their  pursuits.  Of  the  men  of  the  past  age,  whose  labors  in 
science  and  literature  are  now  appreciated,  how  many  might  be 
named  who,  if  living,  would  be  deemed  incompetent  to  manage  an 
estate  successfully.  Yet  men  like  these  have  their  uses,  although 
they  know  little  of  the  value  of  property,  or  the  modes  of  extracting 
rent  from  a  refractory  tenant.  The  statute  does  not  exclude  them 
from  the  class  of  beneficiaries;  nor,  as  I  read  it,  does  it  require  a 
guardian  or  a  trustee  to  supervise  their  expenses;  or  make  their 
degradation  an  essential  condition  of  the  trust.  We  are  told  that 
persons  of  this  class  can  appoint  agents  to  superintend  their  estates. 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     59$ 

So  can  the  creator  of  the  trust,  and  the  law  casts  upon  him  this 
duty,  whoever  may  be  the  cestui  que  trust.  The  chances  of  a 
judicious  selection  would  be  rather  in  favor  of  the  man  who  pro- 
vided the  fund,  than  the  one  who  was  to  expend  the  income. 

And  lastly,  it  is  said  that  estates  created  under  the  third  subdi- 
vision are  alienable;  that  a  trust  to  pay  over  is  passive,  and  opposed 
to  the  policy  of  our  law,  and  the  intention  of  the  Legislature. 
A  trust  to  receive  rents  and  profits,  and  pay  them  over,  is  essentially 
active  in  all  its  particulars.  It  was  so  at  the  common  law  and  is  so 
now.  Jick.  Anal.  p.  15,  note  and  cases;  3  R.  S.  582;  Reviser's 
Notes.  To  pay  over  is  an  active  duty,  and  the  successful  manage- 
ment of  real  estate,  with  a  numerous  tenantry,  demands  not  only 
integrity,  but  the  exercise  of  vigilance,  together  with  a  knowledge 
of  business,  and  of  property.  The  revisers  say,  "  that  active  trusts 
are  indispensable  to  the  proper  enjoyment  and  management  of  prop- 
ety.  They  therefore  propose  to  retain  them,  only  limiting  their  con- 
tinuance, and  defining  the  purpose  for  which  they  may  be  created." 
3  R.  S.,  supra.  I  think  effect  should  be  given  to  their  design,  and 
that  of  the  Legislature.  The  objection,  indeed,  is  rather  to  the 
policy  of  the  statute,  than  the  validity  of  a  trust  to  pay  over.  If  the 
law  was  more  questionable  than  I  believe  it  to  be,  it  is  no  reason 
why  it  should  be  made  more  odious  by  construction. 

The  judgment  of  the  Superior  Court  should  be  affirmed. 

V* 

WILLIAMS  v.  THORN.     <Aj^' 

c^vcK 

70  New  York,  270.  —  1877. 

Rapallo,  J.  —  This  action  is  brought  by  a  judgment  creditor  of 
the  defendant  Butterfield,  after  the  return  of  an  execution  unsatis- 
fied, to  reach  the  surplus  income  of  a  trust  estate,  of  which  the  judg-  A\  £^/ 
ment  debtor  is  the  beneficiary.  \      \rt 

The  trust  estate  consists  of  real  and  personal  property,  which  was 
given  by  the  will  of  the  father  of  the  defendant,  Butterfield,  to  the 
defendants,  Thorn  and  others,  in  trust,  to  receive  the  rents  and 
profits  of  the  real  estate  and  the  income  of  the  personal  estate,  and 
to  pay  over  the  rents  of  the  real  estate  and  the  income  of  the  per- 
sonal property  to  the  defendant,  Butterfield,  during  his  life. 

The  complaint  alleges  that  the  income  of  the  trust  estate  is  much 
greater  than  is  necessary  for  the  support  of  the  defendant,  Butter- 
field, and  those  dependent  upon  him,  and  prays  that  the  surplus  may 
be  applied  to  the  payment  of  the  plaintiff's  judgment. 


596      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

Proof  was  given  on  the  trial  to  the  effect  that  the  gross  rental 
value  of  the  real  estate  was  about  $4,000  per  annum,  and  that  the 
income  of  the  personal  property  was  $600  per  annum,  out  of  which 
taxes  and  insurance' were  to  be  deducted.  Some  of  the  real  estate 
was  occupied  by  the  defendant,  Butterfield,  and  some  was  not  let. 
The  judge,  however,  did  not  pass  upon  the  question  whether  there 
was  any  surplus,  but  decided,  1st.  That  the  plaintiff  was  entitled  to 
have  the  amount  fixed,  which  should  be  a  reasonable  allowance  for 
the  support  and  maintenance  of  the  debtor  and  those  dependent 
upon  him  with  the  right  to  the  debtor  to  apply  for  a  modification,  if 
his  circumstances  should  thereafter  change.  2d.  That  the  surplus 
Over  and  above  such  allowance,  whether  accrued  or  hereafter  to 
accrue,  should  be  paid  to  the  plaintiff,  or  a  receiver  to  be  appointed, 
until  the  debt  of  the  plaintiff  and  his  costs  should  be  paid.  3d.  That 
-ihe  plaintiff  had  the  right  to  have  ascertained  what  amount,  if  any,  of 
accrued  income  belonging  to  the  debtor  was  in  a  certain  undivided 
fund  referred  to  in  the  complaint,  and  that  such  surplus,  if  any, 
should  vest  in  said  receiver,  and  be  applicable  on  said  debt  when 
-collected  by  him;  and  4th.  That  a  referee  should  be  appointed  to 
ascertain  and  report  what  amount  would  be  the  reasonable  allowance 
above  referred  to,  and  also  as  to  the  above  surplus,  and  that  on  the 
coming  in  of  his  report  a  final  decree  be  made. 

The  defendants  excepted  to  this  decision,  and  made  a  motion, 
under  §  268  of  the  Code,  for  a  new  trial  on  a  case  and  exceptions. 
This  motion  was  denied  at  General  Term,  and  from  that  order  the 
defendants  appeal  to  this  court. 

By  1  R.  S.  729,  §  57,  it  is  provided  that  "  where  a  trust  is  created 
to  receive  the  rents  and  profits  of  lands,  and  no  valid  direction  Tor 
accumulation  is  given,  the  surplus  of  such  rents  and  profits  beyond 
the  sum  that  may  be  necessary  for  the  education  and  support  of  the 
person  for  whose  benefit  the  trust  is  created,  shall  be  liable  in  equity 
to  the  claims  of  the  creditors  of  such  person  in  the  same  manner  as 
other  personal  property  which  cannot  be  reached  by  an  execution  at 
law."  ; 

This  provision  is  very  plain,  and  there  can  be  no  question  that  the 
surplus  income  of  the  real  estate,  if  there  be  any  such  surplus, 
is  liable  to  be  reached  in  some  form  by  the  creditors  of  the 
beneficiary.  Most  of  the  cases  on  the  subject  expressly  hold  this 
section  equally  applicable  to  a  trust  to  receive  and  pay  over  the 
income  of  personal  property,  and  no  point  is  made  on  this  appeal 
based  upon  any  distinction  between  the  two  sources  of  the  income 
in  question. 

1  See  §  78,  N.  Y    R.  P.  L.  —  Ed. 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.    597 

The  right  of  a  creditor  to  maintain  an  action  of  this  description  in 
cases  of  trusts  of  personal,  as  well  as  real  estate,  has  been  recog- 
nized since  an  early  period  after  the  adoption  of  the  Revised  Statutes. 
In  Hallett  v.  Thompson,  5  Paige,  586,  it  is  observed  by  the  Chancel- 
lor that  as  a  general  rule  it  is  contrary  to  sound  policy  to  permit  a 
person  to  have  the  ownership  of  property  for  his  own  purposes  and 
to  be  able  at  the  same  time  to  keep  it  from  his  creditors.  That  the 
Revised  Statutes  have  made  one  exception  to  this  rule  to  the  extent 
of  a  provision  for  education  and  necessary  maintenance  merely,  but 
that  in  that  case  the  beneficial  owner  is  himself  deprived  of  the  power 
of  aliening  or  encumbering  the  property  or  his  interest  in  the  rents 
and  profits  as  cestui  que  trust,  and  the  surplus  income,  beyond  what 
is  necessary  for  his  support,  is  in  equity  subject  to  the  claims  of 
his  creditors.  And  that  by  the  analogy  which  courts  of  justice  have 
always  endeavored  to  preserve  between  estates  or  interests  in  land, 
or  the  income  thereof,  and  similar  interests  in  personal  property, 
the  right  of  a  judgment  creditor  to  reach  the  surplus  rents  and 
profits  of  land,  beyond  what  is  necessary  for  the  support  and  main- 
tenance of  the  debtor  and  his  family,  entitles  him  to  maintain  a 
creditor's  bill  which  will  reach  a  similar  interest  of  the  debtor  in 
the  surplus  income  of  personal  property  held  by  another  for  his  use 
and  benefit;  but  not  that  part  of  the  income  which  may  be  necessary 
for  the  support  of  the  judgment  debtor. 

The  right  to  maintain  such  an  action  as  the  present  was  also  sus- 
tained by  V.-C.  Sandford  in  Rider  v.  Mason,  4  Sandf.  Chy.  Rep.  351, 
where  §  57  of  1  R.  S.  729,  is  applied  indiscriminately  to  the  income 
of  real  and  personal  property,  and  in  Sillick  v.  Mason,  2  Barb.  Ch. 
Rep.  79,  wherein  the  chancellor  made  a  decree  allowing  the  defend- 
ant to  receive  out  of  the  income  of  a  trust  fund,  accrued  and  to 
accrue,  a  specific  sum  fixed  by  the  chancellor  as  sufficient  for  his 
support,  and  directing  the  surplus  to  be  retained  for  the  benefit  of 
the  creditor. 

In  Bramhall  v.  Ferris,  14  N.  Y.  41,  the  remedy  of  the  creditor  to 
reach  such  a  surplus  by  bi-11  in  equity,  was  also  conceded,  though  that 
case  was  disposed  of  on  the  grounds  that  there  was  no  allegation  or 
proof  that  the  income  was  larger  than  necessary  for  the  support  of 
the  debtor  and  his  family,  and  also  that  there  was  a  provision  in  the 
will  that  the  interest  of  the  cestui  que  trust  should  cease  on  the 
recovery  by  creditors  of  a  judgment  to  reach  it,  which  provision 
was  held  to  be  valid.  The  same  right  is  also  conceded  in  Scott  v. 
Nevius,  6  Duer,  672,  and  in  Graff  v.  Bomiett,  31  N.  Y.  9. 

It  is  contended,  however,  that  the  case  of  Campbells.  Foster,  35 
N.  Y.  361,  is  an  authority  for  the  position  that  no  part  of  the  interest 


598      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

of  the  cestui  que  trust  in  such  income  can  be  reached,  and  it  is  true 
that  Wright,  J.,  in  that  case,  stated  it  to  be  his  individual  opinion 
that  it  could  not.  His  argument  is,  that  §§  38  and  39  of  2  R.  S. 
173,  except  from  operation  of  creditors'  bills  funds  held  in  trust  for 
the  debtor,  when  the  trust  proceeds  from  a  third  person.1  That  §  63 
of  1  R.  S.  730,  which  provides  that  no  person  beneficially  interested 
in  a  trust  for  the  receipt  of  the  rents  and  profits  of  lands,  can  assign  or 
in  any  manner  dispose  of  such  interest,  renders  the  interest  of  the 
beneficiary  in  a  trust  to  receive  and  apply  the  income  of  personal 
estate  inalienable,  and  therefore  it  cannot  pass  to  creditors.3  But  he 
says  it  is  not  necessary  to  pursue  the  inquiry,  whether  the  surplus  can 
be  reached;  that  his  own  opinion  is  that  it  cannot,  but  he  says,  "  let 
that  pass  and  let  it  be  conceded  that  if  there  be  any  surplus,  it  may 
be  taken.  It  has  been  held,  and  correctly,  that  such  surplus  is  not 
ascertainable  in  supplementary  proceedings  to  discover  and  appro- 
priate the  debtor's  property,  but  only  in  a  suit  where  the  issue  is 
directly  made  on  the  amount  necessary  for  the  debtor's  support. 
If  there  were  an  accumulation  in  the  hands  of  the  trustee,  it  might 
possibly  have  been  reached  under  §  294.  But  a  receiver  in  supple- 
mentary proceedings  cannot  maintain  a  suit  to  reach  so  much  of  the 
income  of  a  trust  fund  as  is  not  required  for  the  suitable  support  of 
the  debtor." 

That  is  the  only  point  decided  in  Campbell  v.  Foster.  The  action 
was  brought  by  a  receiver  of  the  property  of  the  judgment  debtor 
appointed  in  supplementary  proceedings.  The  complaint  set  out  a 
trust  of  personal  property,  created  by  the  father  of  the  judgment 
debtor,  to  pay  the  income  to  her,  that  it  was  more  than  sufficient 
for  her  support,  and  prayed  that  out  of  the  surplus  income  derived, 
and  to  be  derived  from  the  trust  estate,  there  be  paid  to  the  plain- 
tiff, as  receiver,  a  sum  sufficient  to  satisfy  the  judgment.  A  demurrer 
to  this  complaint  was  sustained.  Judge  Wright  rests  his  opinion 
on  two  grounds:  First.  That  under  §§  38  and  39,  2  R.  S.  174, 
the  income  is  absolutely  exempt;  but,  second,  if  he  is  wrong  in 
that,  the  interest  of  the  cestui  que  trust  is  inalienable  under  §  63,  and 
cannot  pass  as  property  of  the  judgment  debtor  to  a  receiver.  In 
this  latter  holding  he  only  followed  the  decision  of  this  court  in 
Graff 'v.  Bonnett,  31  N.  Y.  9,  where  it  was  held  in  a  similar  action 
that  it  would  not  pass  to  a  receiver  until  it  had  actually  become  due 
and  payable,  and  perhaps  not  until  it  has  been  in  some  way  deter- 
mined that  there  will  be  a  surplus.  The  same  point  was  decided  in 
Scott  v.  Nevius,  6    Duer,  672,  but  in  both  of  those  cases  the  right  of 

1  See  Code  Civ.  Proc,  §  1879.  —  En. 
'Sec  §83,  N.  Y.  R.  P.  L.  —  Ed. 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.      599 

the  creditor  in  a  proper  action  to  have  the  amount  necessary  for  the 
support  of  the  debtor  ascertained,  and  to  compel  the  application  of 
the  surplus,  is  fully  recognized. 

Woodruff,  J.,  in  his  opinion  in  Scott  v.  Nevius,  holding  that  an 
interest  of  the  beneficiary  in  such  a  trust  cannot  pass  to  a  receiver 
in  supplementary  proceeding,  says:  "  If  there  was  already  an  accu- 
mulation in  the  hands  of  the  executors,  it  might  doubtless  be  reached 
by  an  order  in  this  proceeding  or  by  a  proceeding  under  §  294.  But 
it  has  been  held,  that  it  cannot  be  anticipated.  But  this  does  not 
import  that  on  a  proper  bill,  filed,  such  surplus  may  not,  by  proper 
directions,  be  secured  to  the  creditor.  On  the  contrary,  the  court 
may  order  a  reference,  to  ascertain  and  fix  the  amount  necessary  for 
his  support,  and  direct  the  executor  to  pay  over  the  surplus  for  the 
satisfaction  of  the  judgment." 

Locke  v.  Mabbett,  2  Keyes,  457,  and  s.  c.  3  Abb.  Ct.  of  App.  Dec. 
68,  also  decides  that  the  surplus  income  cannot  be  reached  by  sup- 
plementary proceedings,  but  expressly  leaves  open  the  question 
whether  it  can  be  reached  by  action  in  equity.  The  learned  judge 
in  'Campbell  v.  Foster,  while  holding  that  §  63,  which  renders  the 
income  inalienable,  applies  to  trusts  of  personal  estate,  fails  to 
advert  to  the  fact  that,  if  §  63  applies,  §  57  must  also,  by  the  same 
reasoning,  be  applicable,  and  that  that  section  expressly  enacts  that 
the  surplus  income  shall  be  liable  to  the  claims  of  creditors  ' 

The  argument  of  Judge  Wright,  that  §§  38  and  39  absolutely 
exempt  the  whole  income  from  the  claims  of  creditors,  has  been 
answered  in  many  cases.  It  is  obvious  that  the  construction  which  he 
gives  them  would  make  them  practically  repeal  §  57.  Such  a  con- 
struction is  by  no  means  necessary.  By  §  38  jurisdiction  is  conferred 
upon  the  Court  of  Chancery  in  creditors'  suits,  to  compel  the  dis- 
covery of  any  property  belonging  to  the  judgment  debtor  or  held 
in  trust  for  him,  and  to  prevent  the  delivery  or  payment  thereof  to 
him.  If  the  section  had  ended  there,  it  is  obvious  that  a  literal 
interpretation  of  it  would  enable  a  creditor  to  stop  all  the  income 
of  a  beneficiary  under  one  of  these  trusts. 

The  exception  is  therefore  added:  "  Except  when  such  trust  has 
been  created  by,  or  the  fund  so  held  in  trust  has  proceeded  from, 
some  person  other  than  the  defendant  himself."  This  does  not 
necessarily  conflict  with  the  provision  subjecting  surplus  incomes 
to  the  claims  of  creditors.  Section  39  authorizes  the  Court  of 
Chancery  to  decree  satisfaction  of  the  judgment  out  of  any  personal 
property  held  in  trust  for  the  debtor,  "  with  the  exception  afore- 
said." This  exception  was  necessary.  In  its  absence  it  might  be 
1  See  §  78,  N.  Y.  R.  P.  L.  —  Ed. 


600      ESTATES   AS   TO   QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

held,  that  in  case  of  a  trust  of  personal  property,  satisfaction  might 
be  decreed  out  of  the  principal.  But  it  is  not  inconsistent  with  the 
special  provision,  in  case  there  is  a  surplus  of  income. 

That  these  sections  (38  and  39)  do  not  present  any  obstacle  to 
reaching  surplus  income  under  §  57,  has  been  held  in  all  the  cases, 
except  Campbell  v.  Foster,  ever  since  the  adoption  of  the  Revised 
Statutes.  In  Craig  v.  Hone,  2  Edw.  Ch.  569,  70,  V.-C.  McCoun 
says,  the  object  of  §  38  was  to  prevent  express  trusts  proceeding 
solely  from  the  bounty  of  some  third  person,  from  being  overthrown 
by  these  creditors'  bills.  It  was  enough  to  say  that  all  beyond 
necessary  support  should  be  liable  to  the  creditors  of  the  cestui  que 
trust.  In  Hallett  v.  Thompson,  5  Paige,  583,  the  Chancellor  says, 
that  §  38  was  intended  to  protect  the  beneficial  interest  of  the  cestui 
que  trust  only  to  the  extent  of  a  fair  support  out  of  the  trust  prop- 
erty. In  Rider  v.  Mason,  V.  C.  Sandford  says,  that  §§  38  and  39  are 
to  be  taken  in  connection  with  the  statute  of  uses  and  trusts,  and 
thus  construed,  limited  to  the  portion  of  the  trust  fund  necessary  for 
the  support  of  the  debtor  and  his  family.  In  Sillick  v.  Mason,  2  B. 
Ch.  79,  these  sections  were  not  considered  an  obstacle  to  a  decree  in 
favor  of  the  creditor  for  satisfaction  out  of  the  surplus  income  aris- 
ing from  real  and  personal  property.  In  Scott  v.  Nevius,  6  Duer,  672, 
Judge  Woodruff  says,  that  §  38  forms  no  impediment  to  such  a 
decree.  In  Graff  v.  Bonnett,  31  N.  Y.  9,  the  right  of  creditors  to 
reach  the  surplus  is  expressly  recognized,  and  Hogeboom,  J.,  in  the 
prevailing  opinion,  construing  §§  38  and  39,  holds  that  they  do  not 
conflict  with  that  right.  In  Campbell  v.  Foster,  the  report  of  the 
case  states  that  six  judges  affirm  on  the  ground  that  the  fund  cannot 
be  reached.  But  in  view  of  the  opinion  in  the  case  which  discards 
as  immaterial  the  question  whether  the  surplus  could  be  reached  by 
a  proper  suit,  and  the  weight  of  authority  in  support  of  the  propo- 
sition that  it  can,  I  think  the  report  must  be  understood  as  meaning 
that  the  six  judges  held  that  the  fund  could  not  be  reached  in  the 
proceeding  then  before  the  court.  Davies,  J.,  who  was  one  of  the 
judges,  concurring  in  the  decision  in  Campbell  v.  Foster,  says,  in 
the  case  of  Locke  v..  Mabbctt,  2  Keyes,  decided  at  the  same  time  with 
Campbell  v.  Foster,  that  it  is  doubtful  whether  under  §§  38  and  39 
such  a  fund  can  be  reached,  but  he  does  not  intimate  that  it  had 
been  so  decided. 

The  case  of  IVelmorev.  Truslow,  51  N.  Y.  338,  does  not  touch  the 
present  case.  It  was  not  a  suit  to  reach  surplus  income,  but  the 
whole,  on  the  ground  that  the  beneficiary  was  also  a  trustee. 

My  conclusion  is,  that  as  to  the  income  of  the  real  estate,  the  sur- 
plus income,  beyond   what  is  necessary  for  the  suitable  support  of 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     6oi 

the  debtor  and  those  dependent  upon  him,  in  the  manner  in  which 
they  have  been  accustomed  to  live,  is  clearly  applicable,  under  §  57, 
to  the  claims  of  his  creditors.  That  as  to  the  surplus  income  of  the 
personal  property,  it  is  likewise  so  applicable.  If  it  is  alienable  by  ' 
the  debtor,  the  cases  concede  that  it  can  be  reached.  If  inalien- 
able, it  is  so  only  by  virtue  of  §  63;  and  if  §  63  applies  to  trusts  of 
personalty,  then  §  57  also  applies  and  subjects  the  surplus  income 
to  the  claims  of  creditors. 

The  further  point  is  made,  that  conceding  the  surplus  income  to 
be  so  applicable,  no  action  can  be  maintained  for  its  application 
until  after  it  has  accumulated  in  the  hands  of  the  trustees. 

I  find  no  authority  for  this  proposition,  except  a  single  Special 
Term  decision,  Hann  v.  Van  Voorhis,  15  Abb.  Pr.  (N.  S.)  79,  nor 
any  reasonable  ground  upon  which  it  can  be  sustained.  It  is  only 
where  the  surplus  is  sought  to  be  reached,  as  property  of  the  debtor, 
or  as  a  debt  due  from  a  third  person,  by  supplementary  proceedings, 
that  such  doctrine  has  been  held,  and  as  has  already  been  shown  by 
the  cases  cited,  those  very  cases  concede  that  a  different  rule  would 
prevail  in  a  suit  like  the  present  one.  In  Sillick  v.  Masont  2  Barb. 
Ch.  79,  the  income  of  the  beneficiary  from  the  trust  fund  was  $2,500 
per  annum.  The  order  was  that  $2,000  per  annum  was  sufficient  for 
his  support.  That  $1,000  be  allowed  to  him  out  of  a  half  year's 
income  due  when  the  bill  was  filed,  and  $1,000  out  of  each  half 
year's  income  thereafter  to  accrue.  The  surplus  was  to  be  retained 
to  abide  the  final  decree,  and  was,  of  course,  applicable  to  the  claim 
of  the  creditor.  In  Chite  v.  Bool,  8  Paige,  83,  the  Chancellor  held 
that  such  an  income  was  inalienable,  and  said,  for  that  reason  that 
it  could  not  be  reached  by  a  creditor  before  it  was  due,  and  he  inti- 
mates that  the  intent  of  the  57th  section  was,  that  such  surplus  as 
might  accrue  from  time  to  time,  should  be  liable  to  the  claims  of 
creditors,  after  it  was  ascertained  that  it  was  not  wanted  and  had  not 
been  applied  to  his  support  as  it  became  due,  whether  it  remained 
in  the  hands  of  the  trustees  or  had  been  received  by  the  cestui  que 
trust.  But  no  such  point  was  decided  in  the  case.  The  income  was 
only  $400,  and  the  creditor  claimed  the  whole  of  it,  and  there  was 
no  allegation  that  it  was  more  than  sufficient  for  the  debtor's  sup- 
port. It  is  manifest  from  the  statement  of  the  proposition,  that  if 
the  views  of  the  Chancellor  were  correct,  the  provision  of  the  57th 
section  would  afford  no  substantial  protection  to  creditors  and  would 
simply  announce  a  principle  without  affording  any  means  of  giving 
it  practical  operation.  But  such  a  construction  is  not  admissible. 
The  section  does  not  say  that  the  surplus  not  spent  by  the  cestui  que 
trust  shall  be  liable  for  his  debts,  but  the  surplus  beyond  the  sum 


602      ESTATES   AS   TO    QUANTITY    AND    QUALITY.      [PT.  IV.   CH.  I. 

that  may  be  necessary  for  his  support  and  education.  It  is  clear 
that  when  a  case  arose,  the  Chancellor  himself  did  not  adhere  to  his 
dictum  in  Clute  v.  Bool,  for  in  Sillick  v.  Mason,  he  fixed  the  sum 
necessary  for  support  and  directed  the  retention  of  the  surplus  of 
future  instalments  of  income.  This  was  recognized  by  V.-C.  Sandford 
and  by  Judge  Woodruff  as  the  proper  course  in  the  cases  cited,  and 
by  Bosworth,  J.,  in  Genet  v.  Foster,  18  How.  Pr.  50,  also  in  Moulton 
v.  De  Macarty,  6  Rob.  533,  and  there  is  no  case,  except  Hann  v. 
Van  Voorhis,  holding  that  the  provisions  of  §  57  can  be  carried  into 
effect  in  any  other  manner.  The  cases  which  require  that  the 
income  should  have  been  realized  are  all  cases  of  supplementary  pro- 
ceedings. Hann  v.  Van  Voorhis  was  a  motion  for  an  injunction  at 
Special  Term,  and  was  decided  on  the  strength  of  Campbell  v.  Foster, 
the  judge  apparently  considering  that  that  case  decided  that  no  part 
of  the  income  could  be  reached  by  a  judgment  creditor  unless  it  had 
accumulated  beyond  the  wants  of  the  cestui  que  trust,  and  was  in 
surplus  by  accumulation  arising  from  the  failure  of  the  latter  to 
spend  or  appropriate,  or  from  some  other  cause.  For  the  reasons 
already  stated,  I  think  Campbell  v.  Foster  does  not  so  decide,  and 
that  such  would  not  be  a  reasonable  interpretation  of  the  statute. 

Order  affirmed. 


Ruger,  Ch.  J.,  in  TOLLES  v.  WOOD. 

99  New  York,  616.  —  1885. 

No  serious  dispute  arose  on  the  argument  over  the  main  questions 
of  law  involved  in  the  controversy,  and  the  following  propositions 
may,  therefore,  be  assumed  as  established  for  all  of  the  purposes  of 
this  discussion: 

1.  When  a  trust  has  been  created  by  one  person  for  the  benefit 
of  another,  which  provides  for  the  payment  of  the  income  of  the 
trust  fund  to  the  beneficiary,  a  judgment  creditor  of  such  beneficiary 
is  entitled  to  maintain  an  action  in  equity  to  reach  and  recover  the 
surplus  income  beyond  what  is  necessary  for  the  suitable  support 
and  maintenance  of  the  cestui  que  trust,  and  those  dependent  upon 
him.  Code  of  Civil  Pro.,  §§  187 1,  1879;  Williams  v.  Thorn,  70  N.  Y. 
270;   Graff  v.  Bonnctt,  31  Id.  9;   Craig  v.  Hone,  2   Edw.  Ch.  570. 

2.  This  rule  applies  as  well  when  the  income  is  derivable  from  a 
tniht  of  personal  property  as  that  from  real  estate.  Hallett  v. 
Thompson,  5  Paige,  583;  Williams  v.  Thorn,  supra  ;  §  57,  art.  2,  tit. 
2,  chap.  1,  Part  2,  R.  S.,  p.  21S2. 

3.  The  disposition  of  such  an  income  cannot  be  anticipated  by  the 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     603 

cestui  que  trust  or  encumbered  by  any  contract  entered  into  by  him 
providing  for  its  pledge,  transfer  or  alienation  previous  to  its  accu- 
mulation. §  63  R.  S.,  p.  2182;  Graff v.  Bonne tt,  supra;  Williams  v. 
Thorn,  supra;  Scott  v.  JVevius,  6  Duer,  672. 

4.  The  creditor  of  such  a  beneficiary  acquires  a  lien  upon  the 
accrued  and  unexpended  surplus  income,  or  that  subsequently  aris- 
ing from  such  fund,  superior  to  the  claims  of  general  creditors  or 
assignees  of  the  cestui  que  trust,  by  the  commencement  of  an  action 
in  equity  to  reach  and  appropriate  it  to  the  satisfaction  of  his  judg- 
ment.     Williams  v.  Thorn,  supra. 

The  headnote  of  the  case  states  that  "  what  are  necessaries  is  a 
mixed  question  of  law  and  fact,  and  therefore  the  opinion  of  a  wit- 
ness as  to  what  was  a  proper  expenditure  is  not  admissible."  The 
trust  fund  in  this  case  consisted  of  both  real  and  personal  property, 
and  the  will  creating  it  expressly  provided  that  the  cestui  que  trust 
should  have  no  power  to  anticipate  the  rents,  income  or  profits 
thereof. 

The  cestui  que  trust,  although  served  with  process  in  the  action, 
suffered  default,  so  far  as  he  was  individually  concerned,  but  is 
defending  as  one  of  the  trustees  of  the  fund  from  which  the  income 
in  dispute  is  derived. 

The  following  facts,  among  others,  were  found  by  the  referee  upon 
the  trial,  and  so  far  as  they  are  supported  by  evidence,  must  be 
regarded  as  conclusively  established  in  the  consideration  of  this 
appeal:  That  Silas  Wood  died  prior  to  the  year  1852,  leaving  a  last 
will  and  testament,  whereby  he  devised  certain  real  and  personal 
property  to  his  executors  in  trust  to  pay  the  rents,  income  and 
profits  thereof  to  his  son  Wilmer  S.,  for  his  use,  but  without  any 
power  of  anticipation  on  his  part;  that  the  defendants  are  now  the 
trustees  of  the  said  fund,  the  said  Wilmer  S.  Wood  having  been  duly 
appointed  as  such,  on  the  death  of  one  of  the  original  trustees  on 
the  21st  day  of  March,  1863;  that  said  Wilmer  S.  for  a  long  time 
previous  to  the  trial  had  been  entitled  to  and  in  the  receipt  of  said 
income,  and  that  the  complaint  in  this  action  was  served  on  said 
Wilmer  S.  on  the  27th  day  of  January,  1883;  that  the  net  income  of 
said  fund  accruing  to  the  said  Wilmer  S.  between  the  said  27th  January, 
and  the  date  of  said  report,  December  4th  thereafter,  was  $4,159.86, 
and  the  amount  paid  personally  to  said  beneficiary  between  said 
dates  was  $1,375;  that  during  the  same  time  the  trustees  paid,  by 
the  direction  of  the  cestui  que  trust,  $1,099.80  as  interest  upon  a  debt 
owing  by  him  to  one  Robert  Center,  and  the  further  sum  of  $708.82 
for  premiums  upon  life  insurance  policies  held  by  said  trustees  upon 
the  life  of  said  Wilmer  S.  as  security  for  an  indebtedness  of  $27,000, 


604      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

owing  by  him  to  the  trust  fund,  and  they  retained  the  further  sum 
of  $810  as  interest  upon  such  debt. 

We  are  of  the  opinion  that  the  judgment  of  the  court  below  should 
be  sustained  upon  the  ground  that  there  was  an  accumulated  surplus 
in  the  hands  of  the  defendants  at  the  time  of  the  rendition  of  the 
judgment  which  had  accrued  during  the  pendency  of  the  action,  and 
was  applicable  to  the  payment  of  the  plaintiff's  judgment,  and  was 
sufficient  to  discharge  the  same.  The  expenditure  of  that  sum  by 
them  for  the  purposes,  and  under  the  circumstances  found  by  the 
referee,  was  a  violation  of  the  rights  secured  by  the  plaintiff  by  the 
commencement  of  this  action,  and  was  unauthorized  by  any  power 
vested  in  them.  This  sum  was  inalienable  by  the  cestui  que  trust, 
and  actual  experiment  had  demonstrated  that  it  was  not  needed  for 
his  support  during  the  period  of  its  accumulation.  The  amount  of 
the  accumulation  would  seem  to  be  more  than  sufficient  to  discharge 
the  obligations  of  the  plaintiff,  and  if  this  should  prove  to  be  so, 
would  render  the  provision  in  the  decree  for  a  further  application  of 
surplus  income  unnecessary.1 

1  In  another  action  against  this  same  defendant  and  his  trustees,  Kilroy  v. 
Wood,  42  Hun  (N.  Y.)  636  (1886),  Brady,  J.,  says:  "  The  evidence  establishes 
that  the  beneficiary  is  in  receipt  of  a  handsome  income,  which  the  learned  jus- 
tice in  the  court  below  thought  was  not  more  than  sufficient  to  support  him  in 
the  manner  in  which  he  had  been  accustomed  to  live,  and  was  not  beyond 
what  his  father  intended  to  provide  for  him.  *  *  *  In  determining  what  is 
a  proper  amount  to  be  allowed  for  his  expenditures,  it  seems  to  be  regarded 
as  proper  to  consider  the  manner  in  which  he  has  been  brought  up,  the  habits 
acquired  by  him,  and  his  ability  to  take  care  of  his  property.  It  was  said  in 
the  case  of  Sillick  v.  Mason  [2  Barb.  Ch.  79]:  '  It  certainly  was  the  misfortune 
of  the  defendant  that  he  was  brought  up  in  idleness,  under  the  idea  that  he 
was  to  inherit  a  large  estate,  and  that  it  was  unnecessary  that  he  should 
acquire  any  business  habits,  so  as  to  fit  him  to  acquire  property  or  to  enable 
him  to  take  care  of  it  if  given  to  him  by  others.'  And  in  the  same  case  the 
chancellor,  after  determining  the  amount  which  should  be  allowed  the  bene- 
ficiary, said:  'And  they  should  not,  upon  a  fair  construction  of  the  statute  on 
this  subject,  be  permitted  to  indulge  in  extravagant  expenditures  whilst  the 
defendant's  creditors  remained  unpaid.'  The  same  observation  applies  in  this 
case.  But  the  difficulty  in  disturbing  the  judgment  arises  from  the  fact  that 
there  is  not  sufficient  evidence  to  show,  indeed  it  may  be  said  that  there  is  no 
evidence  on  the  part  of  the  plaintiff  tending  to  show,  what  would  be  a  proper 
amount  to  allow  the  beneficiary  for  his  support.  He  is,  as  claimed  in  the 
defendant's  points,  a  gentleman  of  high  social  standing,  whose  associations  are 
chiefly  with  men  of  leisure,  and  is  connected  with  a  number  of  clubs,  with  the 
usages  and  customs  of  which  he  seems  to  be  in  harmony  both  in  practice  and 
expenditure,  and  it  is  insisted  on  his  behalf  that  his  income  is  not  more  than 
sulli'  ient  to  maintain  his  position  according  to  his  education,  habits  and  asso- 
ciations.  And  this  may  be  so,  yet  it  would  seem  that  evidence  might  have 
been  adduced  which  would    establish    his   ability   to   live    upon   a   smaller  sum 


II.   i  ]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     605 
(0.)  Forfeiture  for  alienation} 

BR  AM  HALL  v.  FERRIS. 

14  New  York,  41.  —  1856. 

Comstock.  J.  —  If  we  assume,  as  the  appellants  contend,  that  the 
trust  which  the  executors  hold  under  the  will  in  respect  to  the  inter- 
est of  Myron  H.  Ferris,  is  technical  and  passive  merely,  the  con- 
clusion does  not  follow  that  the  plaintiffs  are  entitled  to  the 
relief  they  claim.2  By  the  express  provisions  of  the  will,  reading  the 
codicil  as  a  part  of  it,  his  interest  is  to  terminate  on  the  event  of  a 
decree  or  judgment  pronounced  against  him  in  a  creditors'  suit 
instituted  for  the  purpose  of  obtaining  the  fund;  and  in  that  event 
the  executors  are  directed  to  apply  the  income  to  the  support  of  his 
family  by  paying  the  same  to  his  wife,  or  in  any  other  mode  which 
they  in  their  discretion  may  adopt.  I  know  of  nothing  in  the  rules 
of  law  to  prevent  these  provisions  from  taking  effect  according  to 
the  intention  of  the  testator.  It  may  and  should  be  conceded,  that 
if  the  bequest  to  Myron  H.  Ferris  had  been  given  to  him  absolutely 

than  the  whole  income,  and  thus  relieve  himself  from  the  burden  of  a  debt 
which  seems  to  have  been  justly  contracted.  But  the  evidence  is  wholly 
insufficient  on  this  subject  on  behalf  of  the  plaintiff."  See  also  Stow  v.  Chapin, 
4  N.  Y.  Supp.  496  (18S9).  Van  Brunt,  P.  J.,  says:  "  There  is  another  ground 
upon  which  the  court  was  also  justified  in  denying  the  motion,  and  that  is  that 
there  is  no  proof  whatever  contained  in  these  papers  as  to  what  would  be  a 
sufficient  income  for  the  defendant  Osborne.  It  is  to  be  borne  in  mind  that  the 
creditor  is  not  seeking  to  reach  any  property  of  Howell  Osborne's,  but  is 
endeavoring  to  reach  the  income  of  a  fund  which  his  father  placed  in  the  hands 
of  trustees  to  be  applied  to  his  benefit.  Under  these  circumstances  he  is 
entitled  to  have  so  much  of  said  fund  asjnay  be  necessary  to  support  him  in 
the  style  in  which  he  had  been  accustomed  to  live,  and  in  which  he  had  been 
brought  up  by  his  father,  and  for  the  maintenance  of  which  this  provision  was 
made  in  the  will  of  the  father.  It  is  not  for  the  creditor  to  say  that  his  debtor 
should  live  on  two  dollars  a  day  or  one  dollar;  that  such  a  sum  will  keep  the 
debtor  from  starvation,  or  that  it  will  prevent  his  being  clothed  in  rags.  There 
is  no  such  rule  in  cases  of  this  description.  The  testator  has  the  right  to  do  as 
he  pleases  with  his  money,  and  if  he  desires  to  make  provision  for  the  support 
of  a  profligate  son  in  such  a  manner  that  he  cannot  reach  or  anticipate  this 
fund,  or  the  income  thereof,  he  has  the  right  to  do  so,  and  he  has  the  right  to 
afford  him  the  means  of  living  in  the  manner  in  which  he  has  brought  him  up, 
and  to  which  he  has  been  accustomed,  and  the  creditor  can  claim  only  that 
which  is  in  excess  of  this  amount;  and  that  such  excess  exists  must  be  estab- 
lished by  allegation  of  fact."  —  Ed. 

1  The  estate  is  upon  condition,  limitation  or  conditional  limitation.  —  Ed. 

2  While  discussing  the  case  fully  from  this  point  of  view  the  court  finds  that 
there  was  in  fact  an  active  trust.  —  Ed. 


606      ESTATES   AS   TO   QUANTITY   AND    QUALITY.       [PT.  IV.  CH.   I. 

for  life,  with  no  provision  for  its  earlier  termination,  and  no  limita- 
tion over  in  the  event  specified,  any  attempt  of  the  testator  to  make 
the  interest  of  the  beneficiary  inalienable,  or  to  withdraw  it  from 
the  claims  of  creditors,  would  have  been  nugatory.  Such  an 
attempt  would  be  clearly  repugnant  to  the  estate  in  fact  devised  or 
bequeathed,  and  would  be  ineffectual  for  that  reason,  as  well  as 
upon  the  policy  of  the  law.  The  Blackstone  Bank  v.  Davis,  21  Pick. 
42;  Hallett  v.  Thompson,  5  Paige,  583;  Graves  v.  Dolphin,  1  Sim.  66; 
Brandon  v.  Robinson,  18  Ves.  429.  This  doctrine,  however,  and  the 
cases  on  which  it  rests  do  not  deprive  a  testator  of  the  power  to 
declare  effectually  that  the  bequest  shall  cease  on  the  happening  of 
an  event  which  would  subject  it  to  the  claims  of  creditors,  and  then 
to  give  it  a  different  direction.  "  There  is,"  said  Lord  Eldon,  in 
Brandon  v.  Robinson,  "  an  obvious  distinction  between  a  disposition 
to  a  man  until  he  becomes  a  bankrupt  and  then  over,  and  an  attempt 
to  give  him  property  and  to  prevent  his  creditors  from  obtaining  any 
interest  in  it  although  it  is  his."  See,  also,  Shee  v.  Hale,  13  Ves. 
404;  Lewes  v.  Lewes,  6  Sim.  304;  and  Graves  v.  Dolphin,  1  Id.  66. 
This  distinction  is  one  of  substance,  and  we  think  the  principle  on 
which  it  depends  will  sustain  the  will  of  the  testator  in  the  present 
case.  If  a  testator  may  provide  that  his  bounty  bestowed  upon  one 
person  shall  cease  and  go  to  another  on  the  occurrence  of  bankruptcy, 
I  can  see  no  reason  why  he  may  not  do  so  in  the  event  of  an  execu- 
tion returned  unsatisfied,  followed  by  a  creditors'  suit  and  judgment 
therein.     *     *     * 

Mitchell,  J.  —  *  *  *  By  the  will  the  beneficial  interest  in  a 
certain  share  was  in  Myron  during  his  life,  and  might  pehaps  have 
been  reached  in  part  by  his  creditors.  The  testator  then  alters  that 
interest,  so  that  on  a  certain  event  it  should  cease  and  the  income 
should  thenceforth  pass  to  others.  As  the  will  and  codicil  form  but 
one  instrument,  the  estate  which  the  will  might  have  given  but  for 
the  codicil,  never  existed.  The  only  estate  or  interest  which  Myron 
ever  had  was  that  which  was  created  by  the  joint  effect  of  the  two 
instruments;  that  was  a  right  to  have  the  income  of  a  certain  share 
paid  over  to  him  until  a  judgment  creditor's  bill  should  be  filed 
against  him  and  a  decree  had  thereon,  and  then  that  right  was  to 
cease  and  to  pass  in  favor  of  his  family.  The  father  when  he  made 
the  will  and  codicil  owned  the  whole  estate;  he  had  the  absolute 
power  over  it;  he  could  carve  out  of  it  such  interests  as  he  pleased, 
if  he  violated  no  rule  of  law  in  doing  so;  he  could  give  one-third  to 
Myron  so  long  as  he  lived  in  this  State,  or  so  long  as  he  lived  out  of 
it,  or  until  a  third    person    should    return  from    Rome  or  go  to  it,  or 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     607 

on  any  other  similar  arbitrary  contingency,  according  to  his  will  or 
caprice.  He  was  under  no  obligation,  legal  or  moral,  to  give  his 
property  so  that  the  creditors  of  Myron  could  take  it  from  him  or 
his  family.  His  moral  duty  and  his  duty  to  the  State  were  greater 
to  save  Myron  and  his  family  from  want  or  from  being  a  burden  on 
the  public,  than  to  devote  his  property  to  pay  his  son's  creditors. 
There  is,  therefore,  no  public  policy  which  should  frustrate  the  testa- 
tor's intention. 

The  testator  has  not,  as  supposed  by  the  counsel  for  the  plaintiff, 
given  to  his  son  a  certain  estate  and  then  attempted  while  the  estate 
continued  to  take  from  it  one  of  the  incidents  which  the  law  binds 
inflexibly  to  it;  but  he  gives  him  a  certain  right  in  the  property, 
which  is  to  continue  for  a  limited  time  until  an  uncertain  event  shall 
occur,  and  then,  when  that  event  occurs,  is  to  cease  entirely.  While 
the  son  holds  it  he  holds  it  with  all  the  incidents  which  the  law  attaches 
to  it;  when  the  event,  on  which  it  is  to  cease,  occurs,  the  son  has  no 
longer  any  right  or  interest  in  it,  and  with  the  loss  of  his  right  all  right 
of  his  creditors  also  falls  to  the  ground.  If  the  creditors  could  find 
any  previously  arising  income,  which  the  son  had  not  called  for  and 
could  call  for,  undisposed  of  and  in  the  hands  of  the  executors,  their 
rights  to  that  would  remain  unimpaired;  but  when  his  right  ceased, 
so  also  did  theirs.     *     *     * 

Thus  the  rule  is  made  not  to  depend  on  the  question  whether  the 
act  causing  the  termination  of  the  estate  comes  from  the  tenant  for 
life  or  from  his  creditors,  but  on  its  being  made  (whatever  it  may 
be)  a  cause  for  the  transfer  of  the  estate  to  another.  In  Hallett  v. 
Thompson^  5  Paige,  583,  there  was  no  bequest  over  on  any  con- 
tingency. In  Degraw  v.  C/ason,  11  Paige,  136,  there  was  what  the 
chancellor  considered  an  absolute  estate  in  the  legatee,  alienable  by 
her  although  held  in  trust  for  her,  and  there  were  no  words  showing 
that  the  bequest  was  for  the  personal  support  of  the  legatee,  and 

there  was  no  bequest  over. 

Judgment  affirmed. 


(2.)  Responsibility  of  Life-tenant  for  Incumbrances  and  Taxes. 

The  Vice-Chancelor  in  COGSWELL  v.  COGSWELL. 

2  Edwards'  Chancery  (N.  Y.),  231.  —  1834. 

Then,  as  to  the  two  mortgages  existing  on  parts  of  the  real  estate. 
The  question  is,  who  are  to  bear  the  burden  of  them,  and  in  what 
proportions  and  how  and  by  whom  are  the  principal  and  interest  of 
such  mortgages  to  be  satisfied? 


608      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.   IV.   CH.  I. 

By  the  R.  S.  vol.  i,  749,  §  4,1  the  devisee  of  real  estate,  subject  to 
a  mortgage  executed  by  the  testator,  is  bound  to  satisfy  and  dis- 
charge it  out  of  his  own  property,  without  resorting  to  the  executor, 
unless  there  be  an  express  direction  in  the  will  to  the  contrary. 
Here  there  is  no  such  direction.  A  life  estate  in  the  house  and  lot 
in  Cedar  street  (encumbered  by  a  mortgage  of  ten  thousand  dollars, 
being  one  of  the  houses  there  situated  of  which  the  testator  died 
seized),  is  given  under  the  trusts  of  the  will,  to  the  widow  of  the 
testator  and  to  his  brother  Jonathan  and  sister  Lois  in  equal  thirds; 
and  by  the  residuary  clause,  an  estate  in  fee  in  remainder  in  the 
same  property  is  given  to  the  two  nieces,  Mary  and  Elizabeth  L. 
Cogswell,  subject  to  the  contingency  of  their  dying  without  issue. 
The  same  is  the  case  with  respect  to  the  ten  vacant  lots  on  Front 
street,  which  are  under  a  mortgage  of  two  thousand  six  hundred 
and  ninety  dollars.  Now,  as  between  the  tenants  for  life  and  those 
entitled  in  remainder,  the  former  are  bound  to  keep  down  the  inter- 
est on  the  mortgage  debts,  and  they  must  contribute  alike  out  of 
their  respective  shares  of  the  rents  and  profits  during  life  to  pay  the 
interest  on  those  sums.  As  the  life  estates  fall  in,  the  principal 
sums  remain  a  charge  upon  the  inheritance  and  must  be  borne  by 
those  who  succeed  to  it.  The  tenants  for  life  are  not  bound  to 
extinguish  the  incumbrances.  They  are  only  to  keep  down  the 
annual  interest:  4  Kent's  Com.  (1  ed.)  72,  73;  and  as  a  consequence 
of  this  rule,  in  case  the  mortgagees  should  call  in  their  money  or  if 
it  should  be  found  expedient  to  pay  them  off  out  of  the  residuary 
personal  estate  belonging  to  the  nieces  Mary  and  Elizabeth,  they 
will  be  permitted  to  stand  in  the  place  of  the  mortgagees  so  far  as 
to  collect  the  interest  payable  by  the  tenants  for  life. 

It  appears  that  the  executors  have  already  paid  off  the  mortgage 
of  ten  thousand  dollars.  The  life  estates  must  bear  the  interest 
which  accrued  upon  it  from  the  death  of  the  testator  to  the  time  of 
such  payment;  and  they  must  continue  to  be  charged  with  the 
interest  on  the  principal  sum  in  the  same  manner  as  if  the  mortgage 
remained.  And  the  same  rule  must  be  observed  with  respect  to  the 
two  thousand  six  hundred  and  ninety  dollars  whenever  that  mort- 
gage shall  be  paid. 

1  Now  N.  Y.  R.  P.  L.,  §  215.  —  Ed. 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE— LIFE  ESTATES.    60Q 

CANNON  v.  BARRY. 

59  Mississippi,  289.  —  1881. 
[Reported  herein  at  p.  433.  ]l 


REYBURN  v.  WALLACE. 

93  Missouri,  326.  —  1887. 


Black,  J.  — This  case  is  here  on  an  appeal  from  the  judgment  of 
the  Circuit  Court  sustaining  a  demurrer  to  the  petition.  The 
petition,  which  is  a  bill  in  equity,  in  substance,  states  that  Mrs.  Rey- 
burn,  the  wife  of  the  plaintiff,  died  in  1879,  seized  of  a  large  real 
estate  situate  in  St.  Louis;  that  she  left  surviving  her  one  child,  five 
years  old,  and  her  husband,  the  plaintiff,  who  was  twenty-eight 
years  of  age;  that,  by  her  will,  she  devised  her  real  estate  to  her 
husband  for  life,  in  case  he  should  remain  unmarried,  but  in  case  of 
his  marriage,  then  to  her  heirs,  and  if  she  had  no  heirs  at  his 
death,  then  to  her  sisters  and  their  children  in  case  of  the  death 
of  any  of  them;  that  the  property  is  to  a  large  extent  unproduc- 
tive, and  the  improvements  not  adapted  to  the  neighborhood  in 
which  they  are  situated;  that  the  annual  rents  received  are  some 
fifty-eight  hundred  dollars,  and  the  repairs,  insurance  and  general 
taxes  reduce  this  amount  to  about  three  thousand  dollars.  The 
petition  then  shows  that  four  of  the  streets  upon  which  the  property 
abuts  have  been,  and  are  being,  reconstructed  by  taking  up  the  old 
pavement,  renewing  and  readjusting  the  curbing,  and  paving  the 
roadway  with  granite  blocks  laid  on  a  concrete  foundation;  and  that 
two  other  streets  have  been,  and  are  being,  reconstructed  in  like 
manner,  save  that  the  roadway  is  paved  with  asphalt  on  concrete 
foundation.  For  the  work  thus  done  tax  bills  are  issued,  which  are 
a  lien  upon  the  property  abutting  upon  the  street.  Plaintiff  has  paid 
the  tax  bills  issued,  amounting  to  thirty-seven  hundred  dollars,  and 
others  will  be  issued  to  the  amount  of  thirty-five  hundred  dollars. 
It  is  alleged  that  the  property  is,  and  will  be,  greatly  enhanced  by 
the  improvements.  The  plaintiff  and  his  deceased  wife,  and  all 
other  persons  having  a  contingent  interest  in  the  property  are  made 

1  In  Cochran  v.  Cochran,  2  Desaussure's  Eq.  (S.  C.)  521,  a  widow  who  was 
executrix  charged  to  the  estate  the  taxes  on  a  house  devised  to  her  for  life. 
On  her  accounting  the  chancellor  decreed  "  that  one-third  of  the  taxes  and 
repairs  of  the  house  the  defendant  [the  widow]  occupied,  be  paid  by  her,  and 
the  other  two-thirds  out  of  the  estate."  —  Ed, 

LAW  OF  PROF.   I.N  LAND  —  39 


6lO      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

defendants.  The  prayer  of  the  petition  is  that  a  portion  of  the 
unproductive  property  be  sold  to  pay  the  unpaid  tax  bills,  and  to 
refund  to  plaintiff  the  amount  he  has  paid  in  excess  of  twenty-seven 
per  centum. 

The  only  question  is,  whether  plaintiff,  as  owner  of  the  life  estate, 
should  pay  the  whole  of  these  taxes,  or  whether  they  should  be 
apportioned  between  him  and  those  entitled  to  the  same  in  remainder. 

The  tenant  for  life  is  bound  to  pay  the  interest  on  incumbrances 
on  the  property  out  of  the  rents  and  profits;  but  if  he  pay  off"  the 
incumbrances  it  is  said  that  he  is,  prima  facie,  a  creditor  of  the  estate 
for  the  amount  paid,  deducting  the  interest  he  would  have  had  to  pay 
as  life  tenant  during  his  life.  4  Kent,  74;  1  Wash.  Real  Prop. 
(3d  ed.)  no.  He  must  pay  all  ordinary  taxes,  certainly  so,  if  the 
income  is  sufficient  to  enable  him  to  pay  them.  Johnson  v.  Smith,  5 
Bush.  (Ky.)  102;  Cairnes  v.  Chabert,  3  Edw.  Ch.  R.  (N.  Y.)  312; 
Pike  v.  Wasscl,  94  U.  S.  714;  Varney  v.  Stevens,  22  Me.  334;  Pretty- 
man  v.  Walston,  34  111.  192.  And  generally  he  must  also  pay  the 
expenses  of  managing  the  estate.  Pierce  v.  Boroughs,  58  N.  H.  302; 
Perry  on  Trusts,  sec.  554.  This  author  also  says:  "  If,  however, 
an  assessment  is  made  against  the  estate  for  something  in  the  nature 
of  a  permanent  improvement  or  betterment  of  the  whole  estate,  the 
assessment  may  be  ratably  and  equitably  divided  between  the  tenant 
for  life  and  the  remainderman,"  citing  Plympton  v.  Boston  Dispensary, 
106  Mass.  546,  which  was  a  case  of  an  assessment  of  benefits  for 
opening  a  highway  in  the  vicinity  of  the  property.  In  the  case  of 
Cairnes  v.  Chabert,  supra,  it  was  intimated  that  this  rule,  requiring 
the  life  tenant  to  pay  the  taxes,  ought  not  to  apply  to  those  extra- 
ordinary taxes  levied  for  municipal  improvements  and  permanently 
beneficial  to  the  land,  known  as  assessments;  and  accordingly  it  has 
been  held  in  the  various  courts  of  the  State  of  New  York,  that  the 
remainderman  must  contribute  to  the  payment  of  assessments  for 
municipal  improvement.  Gunning  v.  Carman,  3  Redf.  69;  Fleet  v. 
Dorland,  11  How.  Pr.  489;  In  re  Estate  of  Miller,  1  Tuck.  346;  Stilt- 
well  v.  Doughty,  2  Brad.  311;  Peck  v.  Sherwood,  56  N.  Y.  615. 

In  some  of  these  cases  it  does  not  appear  what  the  improvements 
were.  In  one  the  assessment  was  for  a  sewer,  in  another  for  open- 
ing a  street,  but  in  the  case  last  cited  the  assessment  was  for  flagging 
a  sidewalk.  The  rulings  in  those  cases  were  probably  not  controlled 
by  the  statute  cited  in  Fleet  v.  Dorland,  supra,  but  it  is  quite  likely 
the  statute  had  an  influence  upon  the  result  reached.  The  Supreme 
Court  of  Pennsylvania,  in  Ifitner  v.Fge,  23  Pa.  St.  305,  held  that  the 
costs  of  a  brick  sidewalk  should  be  charged  to  the  tenant  for  life, 
and  not  to  the  remainderman,  and  on  the  ground  that  it  was  not  a 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE—  LIFE  ESTATES.    6ll 

permanent  improvement;  and  so  a  doweress  must  pay  the  cost  of  a 
foot  pavement  in  front  of  a  lot  occupied  by  her  as  a  residence. 
Whyte  v.  Mayor,  2  Swan  (Tenn.)  364. 

In  this  case  the  question  arises  between  the  life  tenant  and  remain- 
derman, and  we  are  considering  it  in  no  other  aspect.  It  cannot  be 
affirmed  that  contribution  must  be  made  in  all  local  assessments. 
Many  of  them  are  of  a  temporary  character,  such  as  board  and  brick 
sidewalks.  The  rule,  it  is  believed,  to  be  extracted  from  the 
authorities,  is,  that  contribution  must  be  confined  to  cases  of  assess- 
ments for  improvements,  which,  in  their  nature,  are  permanent,  and 
do  not  require  renewals  from  time  to  time.  This  rule  will  include 
benefits  for  opening  and  widening  streets,  and  assessments  for 
grading  streets,  and  the  construction  of  permanent  sewers.  But  in 
the  present  case,  the  tax  bills  were,  and  will  be,  issued  for  improv- 
ing the  surface  of  the  streets,  that  part  of  them  which  is  subject  to 
constant  wear  and  tear,  and  in  the  nature  of  things  the  pavements 
must  require  repairs  and  renewals.  Doubtless  the  granite  pave- 
ment is  more-  lasting  than  the  asphalt,  but  we  do  not  think  either 
comes  within  the  rule  before  stated.  In  this  particular  case  it  is 
conceded  the  plaintiff  is  only  twenty-eight  years  of  age,  and,  accord- 
ing to  the  tables  adopted  in  the  life  insurance  law  of  this  State, 
his  expectation  of  life  is  thirty-six  years  and  over.  It  can  hardly 
be  hoped  that  these  pavements  will  last  that  long  without  renewal. 
It  is  true  the  taxes  are  large,  but  we  cannot  make  the  amount  of 
them  the  criterion. 

The  demurrer  was  properly  sustained,  and  the  judgment  is  affirmed. 


(3.)  Estovers.     Emblements.    Improvements  and  Fixtures.    Waste.1 

c.    Termination  of  Life-estates. 

(1.)  The  Natural  Termination.* 

ROSEBOOM  v.  VAN  VECHTEN. 

5  Denio  (N.  Y.),  414,  424.  —  1848. 

\_Reported  herein  at  p.  575.] 

1  See  cases  under  these  headings  in  Part  III.  —  Ed. 

2  See  note  at  p.  580,  supra,  on  producing  cestui  que  vie.  —  Ed. 


6l2      ESTATES   AS   TO    QUANTITY   AND   QUALITY.        [PT.  IV.  CH.  I. 

(2.)  Forfeiture. 
JACKSON  ex  dem.  McCREA  v.  MANCIUS. 

2  Wendell  (N.  Y.),  357.  —  1829. 

Ejectment  by  the  heir-at-law  of  Eve  McCrea  to  recover  certain 
lands  of  hers  sold  by  her  husband  while  tenant  by  the  curtesy  initiate. 
Verdict  for  plaintiff,  subject  to  the  opinion  of  this  court. 

By  the  Court,  Savage,  C.  J.  —  *  *  *  The  marriage  of  John 
McCrea  with  Eve,  and  the  birth  of  a  child,  gave  him  an  interest  in 
the  premises  as  tenant  by  the  curtesy  initiate.  *  *  *  The  father 
being  dead,  and  the  mother  also,  the  heir  of  the  mother  is  entitled 
to  recover,  unless  he  is  barred  by  the  deed  of  his  father,  or  by  lapse 
of  time. 

What  title  passed  by  the  deed  of  John  McCrea?  It  is  a  general 
rule  that  no  one  can  convey  a  better  title  than  he  has;  and  as  it 
appears  that  he  had  an  estate  for  his  own  life,  the  fair  presumption 
would  be  that  he  intended  to  convey  the  estate  which  he  had  in  the 
premises.     *     *     * 

Could  not,  then,  a  tenant  by  the  curtesy  convey  in  fee  without 
having  an  estate  in  fee?  The  Parliament  of  Great  Britain  supposed 
that  such  an  act  might  be  done,  and  guarded  against  it  by  statute 
32  Henry  8,  ch.  28,  which  provision  was  re-enacted  in  this  State  at 
an  early  day  (1  R.  L.  181,  2,  3),  by  which  it  is  enacted,  that  no  fine, 
feoffment  or  other  act  of  the  husband  in  relation  to  the  freehold  or 
inheritance  of  his  wife,  shall  prejudice  such  wife  or  her  heirs.     *    *    * 

I  conclude,  therefore,  that  there  is  nothing  in  the  fact  of  McCrea's 
conveying  a  fee,  to  show  that  he  had  the  capacity  to  convey  such 
an  estate  when  it  is  shown  that  he  had  only  an  estate  for  life,  and 
when,  also,  the  form  of  conveyance  used  by  him  carried  only  such 
estate  as  the  grantor  had.  If  a  greater  estate  is  claimed  under  him, 
it  should  not  be  left  to  presumption  so  ill  sustained,  to  prove  that 
he  had  capacity  to  grant  such  estate. 

Is  the  lessor  barred  by  lapse  of  time?  It  is  contended  that  the 
lessor's  right  of  entry  (if  any)  accrued  in  1780,  at  the  death  of  his 
mother,  and  as  more  than  twenty  years  elapsed  before  suit  brought, 
that  therefore  this  action  cannot  be  maintained.  It  is  said  that  John 
McCrea,  having  only  an  estate  for  life,  by  attempting  to  convey  a 
greater  estate  than  he  had,  forfeited  his  estate,  and  that  the  heir  of 
the  wife  might  have  entered  upon  her  death.  In  this  point  there 
are  two  subjects  of  inquiry  presented:  1.  Did  the  tenant  by  the 
curtesy  forfeit  his  estate  by  attempting  to  convey  a  fee?  and,  2.    If 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.    613 

he  did,  when  did  the  heir's  right  of   entry  accrue?     Was  it  on  the 
death  of  his  mother  or  his  father? 

1.  Estates  for  life  are  considered  at  common  law  as  strict  feuds,  and 
are  forfeitable  for  certain  causes  If  tenant  for  life,  including  ten- 
ant by  the  curtesy,  takes  upon  him  to  convey  a  greater  estate  than 
he  has,  in  such  a  manner  as  to  divest  the  estate  in  reversion  or 
remainder,  such  conveyance  will  operate  as  a  forfeiture  of  his  estate 
for  life,  and  the  reason  given  (a  very  singular  one  in  this  country), 
is  because  it  is  a  renunciation  of  the  feudal  connection  between  him 
and  his  lord.  1  Cruise,  122,  §  36,  and  173,  §  31.  Co.  Litt.  252,3. 
Com.  Dig.  Forf.  a.  r.  The  form  of  conveyance  for  this  purpose 
must  be  such  as  to  divest  the  estate  of  the  reversioner  or  remainder- 
man, and  these  were  three:  Feoffment  with  livery  of  seisin,  fine, 
and  common  recovery;  but  a  conveyance  by  lease  and  release,  or 
bargain  and  sale,  is  no  forfeiture. 

If  the  conveyance  in  this  case  was  by  feoffment,  the  injury  is  one 
which  is  termed  a  discontinuance,  the  entry  of  the  feoffee  being 
lawful  during  the  continuance  of  the  particular  estate,  but  by  his 
continuance  in  possession  after  the  death  of  the  feoffor,  the  legal 
estate  of  the  heir  was  gone,  or  at  least  suspended,  and  for  a  while 
discontinued.  When  the  right  of  entry  is  thus  lost,  and  the  party 
can  only  recover  by  action,  the  possession  is  said  to  be  discontinued. 
By  the  common  law,  the  alienation  of  a  husband  who  was  seized  in 
right  of  his  wife,  worked  a  discontinuance  of  the  wife's  estate,  till 
the  statute  32  Hen.  8,  ch.  28,  provided  that  no  act  by  the  husband 
alone  should  work  a  discontinuance  of,  or  prejudice  the  inheritance 
or  freehold  of  the  wife.     Jacob's  Law  D.  tit.  Discontinuance. 

In  order  to  prove  a  forfeiture,  therefore,  in  the  conveyance  by 
McCrea,  it  should  have  been  shown  to  have  been  a  feoffment  with 
livery  of  seisin.  As  this  mode  of  conveyance  is  nearly  obsolete  in 
England  and  very  little  used,  and  the  more  common  species  of  assur- 
ance being  lease  and  release  and  bargain  and  sale,  we  will  not  pre- 
sume that  a  feoffment  with  livery  was  executed  in  this  instance. 
It  is  equally  probable  that  one  of  the  other  modes  of  conveyance  was 
adopted,  which,  though  in  terms  purporting  to  convey  a  fee,  yet  in 
reality  transfer  no  more  or  greater  estate  than  the  grantor  had. 
The  fact,  then,  of  a  forfeiture  is  not  satisfactorily  shown.  But  sup- 
pose the  conveyance  to  have  been  a  feoffment,  2.  Did  a  right  of  entry 
accrue?  and  was  the  heir  bound  to  enter?  Littleton  says  (§  594), 
"  If  a  man  be  seized  of  land  as  in  right  of  his  wife,  and  thereof 
enfeoff  another  and  dieth,  the  wife  may  not  enter,  but  is  put  to  her 
action,  the  which  is  called  cut  in  vita."  But  this  is  altered,  says 
Coke,  since  our  author  wrote,  by  the  statute  32  Henry  8,  by  the  pro- 


614      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.   CH.  I. 

visions  of  which  statute,  the  wife  and  her  heirs,  after  the  decease  of 
her  husband,  may  enter  into  the  lands  or  tenements  of  the  wife,  not- 
withstanding the  alienation  of  her  husband. 

From  what  has  already  been  said,  and  from  the  cases  referred  to, 
it  would  seem  that  the  criterion  of  the  forfeiture  is  the  actually 
divesting  of  the  estate  of  the  remainderman  or  reversioner  —  the 
passing  an  estate  which  the  grantor  has  no  right  to  pass;  and  as  the 
statute  has  interposed  in  this  case  to  prevent  such  an  effect  from 
the  feoffment  of  the  husband,  I  think  it  follows  that  a  feoffment  in 
such  case  by  the  husband  of  his  wife's  estate  does  not  work  a  for- 
feiture. It  is,  perhaps,  not  material  to  consider  that  question;  but 
the  more  important  inquiry  will  be,  whether  the  heir  is  bound  to 
enter  during  the  life  of  the  tenant  for  life,  supposing  he  has  a  right 
so  to  do.  The  statute  has  been  understood  as  refusing  the  right  of 
entry  till  the  husband's  death:  "And  the  heirs  of  the  wife  shall 
not  be  barred  of  their  action  after  the  death  of  their  father  and 
mother  by  the  deed  of  their  father,  if  they  demand  by  action  the 
inheritance  of  their  mother  which  their  father  did  alien  in  the  life- 
time of  their  mother."  i  R.  L.  183,  §  7.  Lord  Coke  seems  to 
understand  the  statute,  that  no  right  of  entry  exists  till  the  death 
of  the  husband.  He  is  so  understood  by  Jacob  in  his  dictionary, 
who  says,  "  Though  if  the  husband  hath  issue,  and  maketh  a  feoff- 
ment in  fee  of  his  wife's  land,  and  his  wife  dieth,  the  heir  of  the  wife 
shall  not  enter  during  the  husband's  life,  neither  by  the  common 
law,  nor  by  the  statute,"  citing  1  Inst.  326. 

In  the  case  of  The  Earl  of  Pom/ret  v.  Lord  Windsor,  2  Ves.  Sen., 
482,  Lord  Hardwicke  expresses  an  opinion  that  in  case  of  a  fine  by 
a  tenant  for  life,  which,  as  soon  as  levied,  operates  a  forfeiture,  the 
remainderman  or  reversioner  may  enter  presently,  but  is  not  bound 
so  to  do;  and  therefore  the  law  gives  him  five  years  after  the  death 
of  the  tenant  for  life,  because  he  has  no  reason  to  look  until  the 
natural  determination  of  the  estate.  So  Lord  Ellenborough,  in  Doe, 
ex  dem.  Cook  v.  Danvers,  7  East,  321,  says,  that  "  If  a  forfeiture  were 
committed,  the  party  entitled  to  enter  for  it,  was  not  bound  to 
do  so." 

In  the  State  of  Massachusetts,  this  question  has  been  twice 
decided,  9  Mass.  Rep.  508,  and  r5  Mass.  Rep.  472;  the  last  of  which 
cases  was  Wallingford  v.  Heart,  in  which  it  appeared  that  the 
defendant's  grandfather  died  seized  in  1770,  and  the  premises  in 
question  were  assigned  to  the  widow  for  her  dower.  She  died  in 
1810,  and  the  demandant  entered  in  181 1.  The  tenant  proved  that 
he  and  those  under  whom  lie  held  had  been  in  peaceable  pos- 
session,  claiming  the  premises,  which  were  under  improvement,  for 


II.  I.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     615 

thirty  years  and  upwards.  It  was  contended  for  the  tenant,  that  as 
the  right  of  entry  was  barred  by  twenty  years'  possession,  and  as  the 
reversioner  may  enter  on  the  disseisor  during  the  continuance  of  the 
particular  estate,  and  more  than  that  time  having  elapsed,  the 
action  could  not  be  maintained.  But  Parker,  Ch.  J.,  in  delivering 
the  opinion  of  the  court,  says,  "  The  demandant's  right  of  entry 
accrued  on  the  death  of  the  tenant  for  life;  that  if  he  might  have 
entered  in  consequence  of  the  disseisin  of  the  tenant  for  life,  he  was 
not  bound  to  do  so.  He  might  well  suppose  that  the  tenant  had 
entered  under  a  contract  with  her  who  was  seised  of  the  freehold." 
"So  in  this  case,  the  lessor  might  well  suppose  that  Vanderheyden 
had  purchased  only  the  life  estate  of  John  McCrea,  and  he  was  not 
bound  to  look  after  it  till  the  natural  termination  of  the  life  estate. 
I  am  of  opinion,  therefore,  1,  that  the  lessor  has  shown  a  sufficient 
title  to  enable  him  to  recover;  2,  that  there  is  no  ground  to  presume 
a  title  in  fee  in  John  McCrea,  but  only  a  life  estate  as  tenant  by  the 
curtesy;  3,  that  no  forfeiture  is  shown  of  his  life  estate,  because,  1, 
it  does  not  appear  that  he  conveyed  by  feoffment  with  livery  of 
seisin,  and  2d,  if  it  did  so  appear,  the  statute  prohibits  the  discon- 
tinuance which  such  a  conveyance  would  produce  at  common  law; 
and  therefore,  as  the  estate  of  the  reversioner  is  not  affected,  there 
is  no  forfeiture.  I  am  aware  that  the  cause  of  forfeiture  is  said  to 
be  the  disloyalty  of  the  tenant  for  life  to  his  lord;  but  I  consider  the 
true  criterion  of  forfeiture,  the  passing  an  estate  which  he  ought  not 
to  pass;  4,  that  if  a  forfeiture  was  shown,  yet  the  reversioner  is 
not  bound  to  enter  until  the  natural  termination  of  the  life  estate, 
as  the  law  does  not  require  him  to  look  after  the  estate,  the  pre- 
sumption being  that  the  tenant  in  possession  holds  by  such  a  convey- 
ance as  the  tenant  for  life  had  a  right  to  give.  I  am  therefore  of 
opinion  that  the  plaintiff  is  entitled  to  judgment  in  the  two  first 
causes."     *     *     *  Judgment  for  the  plaintiff.1 


(3.)  Merger. 
BOYKIN  v.  ANCRUM. 

28  South  Carolina,  486.  —  1887. 

Ejectment. — The  will  of  William  Ancrum  gave  the  life  use  of 
certain  real  property  to  his  widow  with  remainders  as  indicated  in 
the   opinion  below.     William   A.    Ancrum,    having  a   life   estate  in 

1  Waste  by  the  life  tenant  is,  under  special  circumstances,  another  cause  Jor 
forfeiture  in  many  of  the  states.     See  N.  Y.  Code  Civ.  Pro.,  §  1655.  —  Ed. 


6l6      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CII.  I. 

remainder,  purchased  the  interest  of  the  widow  (then  Mrs.  Julia 
Glass)  and  afterwards  died  while  the  widow  was  still  alive.  Further 
facts  appear  in  the  opinion. 

McGowan,  J.  *  *  *  As  to  the  construction  of  the  devise. 
"  To  my  second  son,  William  Alexander  Ancrum,  for  and  during  the 
term  of  his  natural  life,  and  from  and  after  his  decease  to  his  lawful 
issue,  absolutely  and  in  fee  simple.  But  if  my  said  second  son,  William 
Alexander  Ancrum,  should  die,  leaving  no  lawful  issue  at  the  time 
of  his  decease,  then,  and  in  such  case,"  over,  etc.  Without  going 
again  into  the  authorities  upon  the  subject,  we  think  this  case  is 
concluded  by  that  of  Melntyre  v.  Mclntyre,  16  S.  C.  294,  where  the 
authorities  are  cited  and  the  conclusion  satisfactorily  stated  by  Mr. 
Justice  Mclver  as  follows:  "  We  think  the  authorities  in  this  State 
conclusively  show  that  where  the  word  '  issue  '  is  so  qualified  by 
additional  words  as  to  evince  an  intention  that  it  is  not  to  be  taken 
as  descriptive  of  an  indefinite  line  of  descent,  but  is  used  to  indicate 
a  new  stock  of  inheritance,  the  rule  (in  Shelley's  Case)  does  not  apply." 
In  that  case,  as  in  this,  the  antecedent  estate  was  expressly  "  for 
life,"  and  after  the  decease  of  the  tenant  for  life,  to  the  "  issue." 
The  superadded  words  there  were,  "  and  their  heirs  forever,"  while 
here  they  are  "absolutely  and  in  fee  simple" — an  equivalent 
phrase  certainly  quite  as  strong  as  the  other.  Besides,  here  there 
is  still  another  limitation  over  to  the  third  son,  Thomas  James 
Ancrum,  "  but  if  my  said  second  son,  William  A.  Ancrum,  should 
die,  leaving  no  lawful  issue  at  the  time  of  his  decease,"  etc.  We 
agree  with  the  Master  and  Circuit  Judge  that  William  Alexander 
Ancrum  took  only  a  life  estate  in  the  premises  described,  and  that 
there  was  a  limitation  over  to  his  issue  as  purchasers. 

Then,  as  to  the  plaintiff's  exceptions.  The  first  charges  that  it 
was  error  in  the  judge  to  hold  "  that  when  W.  A.  Ancrum  purchased 
the  life  estate  of  Mrs.  Julia  Glass  in  the  premises  described,  her  life 
estate  merged  in  the  life  estate  of  W.  A.  Ancrum."  It  was  certainly 
just,  when  Chancellor  Kent  adopted  the  language  of  a  great  Master 
in  the  doctrine  of  merger,  "  that  the  learning  under  this  head  is 
involved  in  much  intricacy  and  confusion."  "  Merger  is  described 
as  the  annihilation  of  one  estate  in  another.  It  takes  place  usually 
when  a  greater  estate  and  a  less  coincide  and  meet  in  one  and  the 
same  person,  without  any  intermediate  estate,  whereby  the  less  is 
immediately  merged  —  that  is,  sunk  or  drowned  in  the  greater." 
Garland  v.  Paplin,  32  Grat.  305;  2  Bl.  Com.  177;  4  Kent,  100. 
Taking  this  definition,  do  the  conditions  exist  here  for  a  merger? 
Mr-,,  (ilass  had  an  estate  for  life,  and  (passing  over  the  eldest  son, 


II.   i.]      FREEHOLDS  NOT  OF  INHERITANCE — LIFE  ESTATES.     617 

who  had  died  early)  the  next  vested  estate  was  that  of  William 
Alexander  Ancrum,  which  was  also  for  life,  without  any  estate 
intervening.  These  respective  estates  were  to  be  enjoyed  succes- 
sively, and  not  concurrently  —  that  of  the  mother,  Julia,  coming  first 
in  the  order  of  succession.  But  in  1837  W.  A.  Ancrum  purchased 
the  life  estate  of  Julia  and  held  both,  claiming  the  premises  as  his 
own  absolutely  until  he  sold  and  conveyed  them  to  Doby  in  1857. 
Did  not  this  make  the  case  referred  to  in  the  books  "  of  the  incom- 
patibility of  a  person  filling  at  the  same  time  the  characters  of  tenant 
and  reversioner  in  one  and  the  same  estate?  " 

It  is  said,  however,  that  both  estates  were  for  life,  and  therefore 
equal  in  degree  and  merger  only  takes  place  when  a  larger  and 
smaller  estate  meet  in  the  same  person.  The  general  rule  is,  that 
equal  estates  will  not  drown  in  each  other,  but  there  are  well  estab- 
lished exceptions.  Were  these  estates  equal  in  the  sense  of  the  rule? 
Looking  at  them  from  the  point  of  view  of  W.  A.  Ancrum,  one  was 
an  estate  for  the  life  of  Mrs.  Julia  Glass,  preceding  his  estate,  and 
the  other  succeeding  was  for  his  own  life.  There  seems  to  be  some- 
thing in  the  order  in  which  the  estates  stand  to  each  other  in  the 
matter  of  time.  Chancellor  Kent  states  the  rule  thus:  "  The 
merger  is  produced,  either  from  the  meeting  of  an  estate  of  higher 
degree  with  an  estate  of  inferior  degree,  or  from  the  meeting  of  the 
particular  estate  and  the  immediate  reversion  in  the  same  person. 
An  estate  for  years  may  merge  in  an  estate  in  fee  or  for  life;  and  an 
estate  pur  autre  vie,  may  merge  in  an  estate  for  one's  own  life;  and 
an  estate  for  years  may  verge  in  another  estate  or  term  for  years,  in 
remainder  or  reversion.  *  *  *  To  effect  the  operation  of  merger, 
the  more  remote  estate  must  be  the  next  vested  estate  in  remainder 
or  reversion,  without  any  intervening  estate,  either  vested  or  con- 
tingent; and  the  estate  in  reversion  or  remainder  must  be  at  least 
as  large  as  the  preceding  estate." 

It  seems  that  even  when  the  estates  are  theoretically  equal,  the 
first  in  the  order  of  succession  may  merge  in  the  next  vested  remain- 
der, being  in  this  respect  somewhat  like  a  surrender,  which  is  the 
relinquishment  of  a  particular  estate  in  favor  of  the  tenant  of  the 
next  vested  estate  in  remainder  or  reversion  In  the  notes  to 
the  case  of  James  v.  Morey,  2  Cowen,  246,  14  A.  D.  475;  "  Leading 
Cases  in  the  American  Law  of  Real  Property,"  lately  published 
(1887)  by  Sharswood  &  Budd,  vol.  3,  231,  the  rule  is  thus  stated: 
"  The  estate  in  reversion  or  remainder  must  be  as  large  as,  or  larger 
than,  the  estate  to  be  merged.  3  Prest.  Conv.  51.  The  expression, 
'  as  large,  or  larger, '  must  be,  of  course,  taken  in  the  technical  sense ; 
thus  an  estate  for  life  is  larger  than  an  estate  for  years,  although 


6l8      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.   IV.  CH.  I. 

death  may  destroy  the  former  estate  long  before  the  efflux  of  time 
has  brought  the  latter  to  a  conclusion.  Thus,  if  a  lease  be  made  for 
years,  with  a  remainder  to  the  lessee  for  life,  the  estate  for  years 
will  merge;  but  if  there  be  an  estate  for  life,  with  remainder  to  the 
life  tenant  for  years,  there  will  be  no  merger.  Co.  Litt.  54,  b.  In 
Shehan  v.  Hamilton,  4  Abb.  App.  211,  it  is  said  that  estates  of  equal 
degree  do  not  merge;  but  whether  this  be  strictly  so  or  not,  the 
effect  of  a  merger  will  be  produced  by  the  unity  of  possession. 
An  estate  at  will  will  merge  in  an  estate  for  years.  3  Pres.  Conv. 
176.  Estates  for  years  may  merge  in  each  other  or  in  estates  for 
life.  Estates  for  life  will  merge.  Co.  Litt.  338  b;  Caryw.  Warner, 
63  Me.  571;  Allen  v.  Anderson,  44  Ind.  395."  We  cannot  say  that 
the  Circuit  Judge  committed  error  in  holding  that  when  W.  A. 
Ancrum  purchased  the  life  estate  of  Mrs.  Glass  in  the  premises  that 
estate  merged  in  his  estate. 

Exceptions  2,  3,  and  4  make  the  point,  substantially,  that  the 
judge  erred  in  holding  that  at  the  death  of  William  A.  Ancrum  (1862) 
the  rights  of  the  issue  in  remainder  attached,  and  from  that  time 
the  possession  of  the  parties  was  adverse,  so  as  to  put  in  motion  the 
presumption  of  a  grant  from  Mrs.  Elizabeth  B.  Boykin,  who  reached 
her  majority  in  1864,  two  years  after  the  death  of  her  father,  W.  A. 
Ancrum,  and  more  than  twenty  years  before  the  commencement  of 
the  action.  The  life  estate  of  Mrs.  Glass  was  the  first  in  the  order 
of  succession,  and  doubtless  was  expected  to  be  the  first  to  fall  in; 
the  fact,  however,  was  otherwise,  for  she  survived  W.  A.  Ancrum  for 
more  than  twenty  years.  It  is  true  that,  but  for  his  purchase  of 
her  estate,  W.  A.  Ancrum  would  never  have  reached  the  possession 
of  his  estate;  and  it  is  asked  whether,  under  these  circumstances, 
his  right  must  be  limited  to  his  own  life  estate,  which,  though  vested, 
he  never  enjoyed  in  possession,  so  as  to  make  his  death,  and  not 
hers,  the  time  at  which  an  action  accrued  to  the  remaindermen. 
At  first  view  it  is  not  obvious  how  an  estate,  which  turned  out  to  be 
the  longest,  could  be  drowned  in  one  of  shorter  duration;  but, 
according  to  the  authorities,  it  seems  that  such  was  the  necessary 
consequence  of  the  merger.  See  Mangum  v.  Piester,  16  S.  C.  330; 
4  Kent,  99;  2  Pom.  Eq.  Jur.,  section  787,  and  notes,  where  it  is  said 
that:  "  An  estate  for  years  will  merge  in  a  reversionary  term  of 
years,  even  though  the  latter  is  of  less  duration,"  citing,  among 
other  authorities,  Welsh  v.  Phillips,  54  Ala.  309.  And  Chancellor 
Kent  says:  '  The  estate  in  which  the  merger  takes  place  is  not 
enlarged  by  the  accession  of  the  preceding  estate,  and  the  greater 
or  0  ily  subsisting  estate  continues  after  the  merger  precisely  of. 
the   same  quantity  and  extent  of  ownership  as    it   was   before   the 


II.  2.]      FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.    619 

accession  of  the  estate  which  is  merged,  and  the  lesser  estate  is 
extinguished,"  etc. 

We  cannot  doubt  that  the  premises  were  held  adversely  to  all  the 
world.  During  his  life  William  A.  Ancrum  held  them  as  his  own 
absolutely.  Shortly  before  his  death  (in  1857)  he  conveyed  them  to 
Joseph  W.  Doby,  with  the  usual  warranty  of  title.  We  do  not  see 
how  the  relinquishment  of  some  of  the  remaindermen  could  affect 
the  character  of  the  possession  as  to  those  who  did  not  relinquish. 
We  do  not,  however,  think  that  the  defendants  should  have  interest 
on  the  value  of  their  improvements  while  they  have  the  possession 
and  use  of  the  same. 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Circuit 
Court,  with  the  slight  modification  as  to  interest  on  the  value  of  the 
improvements,  be  affirmed.1 


2.  Conventional  Life-estates. 

a.   Created  by  act  of  parties. 

(1.)  By  Deed. 

ADAMS  v.  ROSS. 

30  New  Jersey  Law,  505.  —  i860. 

[Reported  herein  at  p.  4S3.] 


(2.)  By  Devise. 

Mccormick  harvesting  machine  co.  v.  gates. 

75  Iowa,  343-  —  1888. 
[Reported  herein  at  p.  5S1.] 


(3.)  Not  by  Parol,  or  by  Writing  less  than  Deed. 

STEWART  v.  CLARK. 

13  Metcalf  (Mass.),  79.  —  1847. 

Action  of  waste.  The  declaration  alleged  that  defendant  Clark, 
was  tenant  for  life  and  that  plaintiff  held  the  next  immediate  estate 
of  inheritance  in  the  premises,  and  that  defendant  had  made  waste. 

1  But  a  clear  intention  of  the  parties  to  that  effect  would  prevent  the  merger 
of  the  estate  pur  autre  vie.  Snow  v.  Boycott,  (1S92)  3  Ch.  Div.  (Eng.)  110. 
Equity  will  often  prevent  a  merger  where  otherwise  serious  wrong  would  be 
done.  —  Eu. 


620      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.   IV.  CI  I.  I. 

As  evidence  of  the  existence  of  a  life  interest  in  defendant,  plain- 
tiff offered  a  paper  purporting  to  create  a  life  estate,  but  neither 
sealed  nor  acknowledged.  Defendant  objected  to  said  paper  as  evi- 
dence of  a  freehold  interest  in  him  on  the  ground  that  it  was  not 
under  seal,  and  to  its  reception  because  it  was  not  acknowledged. 
The  paper  was  rejected  and  plaintiff  submitted  to  a  nonsuit  subject 
to  the  opinion  of  this  court.  Plaintiff  claims  that  under  §  28,  ch. 
59  of  the  Rev.  Sts.,  "the  paper  in  question  may  be  operative,  as  a 
writing,  against  the  grantor  and  his  heirs  to  create  a  life  estate." 

Dewey,  J.  — The  objection  taken  to  the  instrument  offered  as  a 
conveyance  of  a  freehold  interest  to  Lewis  Clark  is  sound,  and 
must  prevail.  The  instrument  is  not  under  seal;  is  not  a  deed.  As 
a  valid  conveyance  of  a  life  estate,  it  should  be  under  seal.  Rev. 
Sts.  c.  59,  §  1.  The  further  provision  of  §  28  that,  "  no  bargain 
and  sale  or  other  like  conveyance  of  any  estate  in  fee  simple,  fee  tail, 
or  for  life,  and  no  lease,  for  more  than  seven  years  from  the  making 
thereof,  shall  be  valid  and  effectual  against  any  other  person  than 
the  grantor  and  his  heirs,  and  devisees,  and  persons  having  actual 
notice  thereof,  unless  it  be  made  by  a  deed  recorded,"  does  not 
dispense  with  the  necessity  of  passing  such  title  by  deed. 

Nonsuit  confirmed. 


b.   The  words  of  limitation. 

ADAMS  v.  ROSS. 

30  New  Jersey  Law,  505.  —  i860. 

[Reported  herein  at  p.  483.]1 


c.    Created  out  of  what.9 
d.   Successive  life-estates. .' 


1  See  also  cases  pp.  489-520,  supra.  —  Ed. 

2  Life  estates  are  usually  created  by  the  owner  of  a  fee  or  of  a  life  estate ;  but  note 
that  the  transfer  of  a  life  estate  gives  the  transferee  an  estate  pur  autre  vie. 
See  cases  cited  herein.  In  New  York  an  estate  for  life  may  be  created  out  of  a 
term  for  years.     £  40,  N.  Y.  R.  P.  L.  —  En. 

3  Remainders  for  life.  See  N.  Y.  R.  P.  L.,  §  33,  for  a  special  limitation  on 
their  creation.  —  Ed. 


II.  3- J      FREEHOLDS  NOT  OF  INHERITANCE  —LIFE  ESTATES.    621 

3.  Legal  Life  Estates. 
a.   Estate  in  tail  after  possibility  of  issue  extinct. 1 


b.   Estates  by  the  marital  right. 
BABB  v.  PERLEY.2 

1  Maine,  6.  —  1S20. 
{Reported  herein  at  p.  27. J 


1  Lit.  j5  32.  "  Tenant  in  fee  tail  after  possibility  of  issue  extinct  is,  where 
tenements  are  given  to  a  man  and  to  his  wife  in  special  tail,  if  one  of  them  die 
without  issue,  the  survivor  is  tenant  in  tail  after  possibility  of  issue  extinct. 
And  if  they  have  issue,  and  the  one  die,  albeit  that  during  the  life  of  the  issue, 
the  survivor  shall  not  be  said  tenant  in  tail  after  possibility  of  issue  extinct; 
yet  if  the  issue  die  without  issue,  so  as  there  be  not  any  issue  alive  which  may 
inherit  by  force  of  the  tail,  then  the  surviving  party  of  the  donees  is  tenant  in 
tail  after  possibility  of  issue  extinct." 

Lit.  §  33.  "  Also  if  tenements  be  given  to  a  man  and  to  his  heirs  which  he 
shall  beget  on  the  body  of  his  wife,  in  this  case  the  wife  hath  nothing  in  the 
tenements,  and  the  husband  is  seised  as  donee  in  special  tail.  And  in  this 
case,  if  the  wife  die  without  issue  of  her  body  begotten  by  her  husband,  then 
the  husband  is  tenant  in  tail  after  possibility  of  issue  extinct." 

Lit.  §  34.  "And  note,  that  none  can  be  tenant  in  tail  after  possibility  of  issue 
extinct,  but  one  of  the  donees,  or  the  donee  in  special  tail.  For  the  donee  in 
general  tail  cannot  be  said  to  be  tenant  in  tail  after  possibility  of  issue  extinct; 
because  always  during  his  life,  he  may  by  possibility  have  issue  which  may 
inherit  by  force  of  the  same  entail.  And  so  in  the  same  manner  the  issue 
which  is  heir  to  the  donees  in  special  tail,  cannot  be  tenant  in  tail  after  possi- 
bility of  issue  extinct,  for  the  reasons  above  said." 

"And  note,  that  tenant  in  tail  after  possibility  of  issue  extinct  shall  not  be  pun- 
ished of  waste,  for  the  inheritance  that  once  was  in  him.  10  H.  6,  1.  But  he 
in  the  reversion  may  enter  if  he  alien  in  fee.     45  E.  3,  22."  —  Ed. 

2  See  also  Houghton  v.  Hapgood,  supra,  p.  24,  and  Foster  v.  Marshall,  p.  622, 
infra. 

For  the  interest  of  the  husband  in  his  wife's  leaseholds,  see  Riley's  Adminis- 
trator v.  Riley,  supra,  p.  26.  For  the  wife's  separate  estate  in  equity,  see  Taques 
v.   Trustees,  supra,  p.  93,  and  Pullen  v.  Rianhard,  supra,  p.  95. 

In  most  of  the  states  the  doctrine  of  the  estate  by  the  marital  right  has  been 
abrogated;  at  first  usually  by  the  introduction  of  a  statutory  separate  estate, 
later  by  more  radical  statutes  which  place  the  married  woman  as  to  her  prop- 
erty rights  on  the  same  footing  as  a.  feme  sole.  For  the  course  of  legislation  in 
New  York  on  this  subject,  see  Laws  of  184S,  ch.  200;  1849,  cn-  375;  1S60,  ch. 
90,  and  the  Domestic  Relations  Law  of  1896,  §§  20  and  21.  See  also  statutes 
with  regard  to  divorce,   Code  Civ.  Proc,  §§  1759,  1760.  —  Ed. 


622      ESTATES   AS   TO    QUANTITY   AND   QUALITY.       [PT.  IV.  CH.  I. 

c.   Estate  by  the  curtesy. 

(i.)  Nature  of  Curtesy  Initiate  and  Consummate. 

FOSTER  v.  MARSHALL. 

22  New  Hampshire,  491.  —  1851. 

Writ  of  entry.     The  facts  appear  in  the  opinion. 

Bell,  J.  —  The  principal  question  arising  in  this  case,  is  as  to  the 
effect  of  the  statute  of  limitations  upon  the  demandant's  right  of 
action.  It  appeared  that  the  demanded  premises  were  set  off  by  a 
committee  of  partition,  appointed  by  the  Court  of  Probate,  to  Mary 
Foster,  formerly  Mary  Eastman,  the  mother  of  the  demandant,  as 
her  share  of  the  estate  of  her  father,  Samuel  Eastman,  deceased,  on 
the  14th  of  May,  1814.  Mary  Foster  was  then  the  wife  of  Frederick 
Foster,  by  whom  she  then  had  one  or  more  children.  Frederick 
Foster  died  in  1834,  and  his  wife  in  1836.  They  had  six  children, 
whose  rights  are  said  to  be  now  vested  in  the  plaintiff. 

The  defendant  proved,  that  in  181 7,  one  Morrill  was  in  possession, 
claiming  to  be  the  owner  of  the  demanded  premises.  He  conveyed 
the  same  by  deed,  dated  July  3,  1817,  to  one  Marshall,  who  entered 
and  occupied,  claiming  title,  till  April  30,  1847,  when  he  conveyed 
to  the  tenant,  who  has  since  remained  in  possession.  The  tenant 
claims  that  he  has  a  perfect  title  by  thirty  years'  undisturbed,  and 
peaceable  possession.  The  demandant  alleges  that  his  right  is  not 
barred,  because  at  the  time  when  the  disseisin  occurred,  in  1817, 
Mrs.  Foster  was  a  feme  covert,  and  up  to  1834  her  husband  had  an 
estate  for  life  in  the  premises  and  she  had  no  right  of  entry  until  his 
decease,  and  consequently  no  right  of  action  till  then,  and  that  since 
that  time  twenty  years  have  not  elapsed. 

Under  the  statute  of  limitations,  which  was  in  force  in  this  State 
before  the  Revised  Statutes,  it  must  be  considered  settled,  that  the 
statute  did  not  affect  the  right  of  a  remainderman  or  reversioner, 
during  the  continuance  of  the  particular  estate;  and  that  neither  the 
acts  nor  the  laches  of  the  tenant  of  the  particular  estate  could  affect 
the  party  entitled  in  remainder.  Wells  v.  Prince,  9  Mass.  Rep. 
508;  Wallingford  v.  Hcarl,  15  Mass.  Rep.  471;  Tilsonv.  Thompson, 
10  Pick.  Rep.  359. 

No  right  of  entry  or  action  accrued  to,  or  vested  in  the  heirs  of 
the  wife  during  the  continuance  of  an  estate  by  the  curtesy.  Jack- 
son v.  Schoonmakcr,  4  Johns.  Rep.  390. 

Hut  the  party  entitled  is  not  barred,  until  the  usual  period  of  limi- 
tation after  the  termination  of  the  life  estate.  Heath  v.  White,  5 
Conn.  Rep.  22S;    Witham  v.  Perkins,  2  Greenl.  Rep.  400. 


II.  3-]  LIFE  ESTATES:  CURTESY.  623 

If,  then,  the  husband  had,  in  this  case,  an  estate  by  the  curtesy, 
or  any  interest  in  the  land  which  would  entitle  his  wife,  who  survived, 
to  be  regarded  as  seised  only  in  remainder  or  reversion,  she  and  her 
heirs  would  have  the  full  period  of  twenty  years  after  the  death  of 
the  husband,  to  commence  their  action. 

To  constitute  a  tenancy  by  the  curtesy,  the  death  of  the  wife  is 
one  of  the  four  things  required.  The  estate  of  the  husband  is 
initiate  upon  the  birth  of  issue.  It  is  consummate  on  the  death  of 
the  wife.     4  Kent's  Comra.  29;  Co.  Litt.  30  a. 

By  the  intermarriage,  the  husband  acquires  a  freehold  interest, 
during  the  joint  lives  of  himself  and  his  wife,  in  all  such  freehold 
property  of  inheritance  as  she  was  seised  of  at  the  time  of  marriage, 
and  a  like  interest  vests  in  him  in  such  as  she  may  become  seised  of 
during  the  coverture.  The  husband  acquires  jointly  with  the  wife, 
a  seisin  in  fee  of  the  wife's  freehold  estates  of  inheritance,  the  hus- 
band and  wife  being  seised  in  fee  in  right  of  the  wife.  Gilb.  Ten. 
108;  Co.  Litt.  67  a.;  Palyblank  v.  Hawkins,  1  Saund.  Rep.  253  n. ;  S. 
C.  Doug.  350. 

This  interest  may  be  defeated  by  the  act  of  the  wife  alone;  as  if, 
at  common  law,  the  wife  is  attained  of  felony,  the  lord  by  escheat 
could  enter  and  eject  the  husband.  4  Hawk.  P.  C.  78;  Co.  Litt. 
40a.;  Vin.  Ab.  Curtesy,  A.;  Co.  Litt.  351  a. 

After  the  birth  of  issue  the  husband  is  entitled  to  an  estate  for 
his  own  life,  and  in  his  own  right,  as  tenant  by  the  curtesy  initiate. 
Co.  Litt.  351  a.,  124  b.;  Schermerhorn  v.  Miller,  2  Cowen's  Rep.  439. 
He  then  becomes  sole  tenant  to  the  lord,  and  is  alone  entitled  to  do 
homage  for  the  land,  and  to  receive  homage  from  the  tenants  of  it, 
which  until  issue  born  must  be  done  by  husband  and  wife.  2  Black. 
Comm.  126;  Litt.  §  90;  Co.  Litt.  67  a.,  30  a. 

Then  he  may  forfeit  his  estate  for  life  by  a  felony,  which,  until 
issue  born,  he  could  not  do,  because  his  wife  was  the  tenant. 
2  Black.  Comm.  126;  Roper,  Hus.  and  Wife,  47. 

If  the  husband,  after  the  birth  of  issue,  make  a  feoffment  in  fee, 
and  then  the  wife  dies,  the  feoffee  shall  hold  the  land  during  the 
husband's  life;  because  by  the  birth  of  issue,  he  was  entitled  to 
curtesy,  which  beneficial  interest  passed  by  the  feoffment.  Co. 
Litt.  30  a. 

If  such  feoffment  is  made  before  issue  born,  the  husband's  right 
to  curtesy  is  gone,  even  though  the  feoffment  be  conditional  and  be 
afterwards  avoided.  And  if  in  such  case  the  husband  and  wife  be 
divorced  a  vinculo  matrimonii,  the  wife  may  enter  immediately. 
Guneley's  Case,  8  Co.  Rep.  73. 

The  husband's  estate,  after  issue  born,  will  not  be  defeated  by 


624      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CII.  I. 

the  attainder  of  the  wife,  for  his  tenancy  continues,  he  being  sole 
tenant,     i  Hale,  P.  C.  359;  Co.  Litt.  351  a.,  40a. ;  Bro.  Ab.  Forf.  78. 

The  obvious  conclusion  from  these  views  of  the  nature  of  the 
interest  of  a  tenant  by  the  curtesy  initiate  is,  that  such  tenant  is  seised 
of  a  freehold  estate  in  his  own  right,  and  the  interest  of  his  wife  is  a 
mere  reversionary  interest,  depending  upon  the  life  estate  of  the 
husband.  The  necessary  result  of  this  is  that  the  wife  cannot  be 
prejudiced  by  any  neglect  of  the  husband,  and,  of  course,  she  may 
bring  her  action,  or  one  may  be  brought  by  her  heirs,  at  any  time 
within  twenty  years  after  the  decease  of  the  husband,  when  his  estate 
by  the  curtesy,  whether  initiate  or  consummate,  ceases,  and  her 
right  of  action,  or  that  of  her  heirs,  accrues.  In  this  respect  there 
is  no  distinction  between  curtesy  initiate  and  curtesy  consummate. 
Melvin  v.  Locks  &*  Canals,  16  Pick.  R.  140. 

So  far  as  we  are  aware,  this  principle  has  never  been  questioned, 
where  the  inheritance  of  the  wife  has  been  conveyed  to  a  third  per- 
son, either  by  the  deed  of  the  husband  alone,  or  by  a  deed  executed 
by  husband  and  wife,  which  from  some  defect  did  not  bind  the 
interest  of  the  wife.  Miller  v.  Shackleford,  3  Dana  Rep.  289;  Caller 
v.  Metzer,  13  Serg.  &  Rawle  Rep.  356;  Fagan  v  Walker,  5  Iredell 
Rep.  634;  McCorry  v.  King,  3  Humph.  Rep.  267;  Melius  v.  Snow- 
man, Shepley  Rep.  201;  Meramon  v.  Caldwell,  8  B.  Mon.  Rep.  32; 
Gill  v.  Fauntleroy,  lb.  177;  Melvin  v.  Locks  and  Canals,  16  Pick.  Rep. 
140.  But  it  has  been  held,  Melvin  v.  Locks  and  Canals,  16  Pick.  Rep. 
161;  Kittridge  v.  Locks  and  Canals,  17  Pick.  Rep.  246,  that  where  a 
disseisin  has  been  committed  upon  the  wife's  estate,  the  disseisin  is 
done  alike  to  the  husband  and  wife;  that  a  joint  right  of  entry  and 
of  action  accrues  to  both  for  the  recovery  of  it,  and  that  if  such 
remedy  is  not  prosecuted  within  twenty  years,  it  is  barred. 

This  is  true  where  the  husband  has  acquired  no  estate  by  the 
curtesy,  and  is  seised  merely  in  the  right  of  the  wife  of  her  estate. 
Such  are  the  cases  of  Guion  v.  Anderson,  8  Humph.  Rep.  298;  Melius 
v.  Snowman,  8  Shep.  Rep.  201. 

And  if  the  husband  is  tenant  by  curtesy,  as  he  and  his  wife  are 
seised  of  the  fee  in  right  of  the  wife,  the  action  must  be  brought  by 
husband  and  wife,  and  a  joint  seisin  in  fee  alleged  in  them  in  her 
right.  Anon.  Bills.  21.  Their  joint  right  of  action  is  barred  by  the 
lapse  of  twenty  years  after  it  accrues.  But  it  by  no  means  follows 
that  the  reversionary  right  of  the  wife,  accruing  in  possession  after 
the  estate  of  her  husband  has  ceased,  is  also  barred.  It  is  well 
settled,  that  the  same  party  may  have  several  and  successive  estates 
in  the  same  property,  and  several  rights  of  entry  by  virtue  of  those 
estates,  and    one    of    those  rights   may  be    barred  without  the  others 


II.  3- J  LIFE  ESTATES:    CURTESY.  625 

being  affected.  Hunt  v.  Burn,  2  Salk.  422;  Wells  v.  Prince,  9  Mass. 
Rep.  50S;  Stevens  v.  Winship,  1  Pick.  Rep.  318;  Tilson  v.  Thompson, 
10  Pick.  Rep.  359. 

And  every  reason,  which  can  exist  in  favor  of  the  right  of  any 
reversioner,  applies  equally  in  this  case,  namely,  that  a  reversioner 
has,  as  such,  no  right  of  entry  and  no  right  of  action  during  the 
particular  estate,  and  consequently  is  not  barred  until  twenty  years 
after  his  own  right  of  entry  accrued.  2  Sugd.  V.  &  P.  353;  3  Steph. 
N.  P.  2920,  n.  10;  9  Mass.  Rep.  508;  1  Pick.  Rep.  318;  15  Mass. 
Rep.  471;  10  Pick.  Rep.  359;  4  Johns.  Rep.  390,  before  cited. 
Besides,  the  wife  by  reason  of  her  disability  can  make  no  entry  to 
revest  her  estate  during  the  coverture.  Litt.  p.  403;  Co.  Litt.  246  a. 
Coke  says,  in  express  terms,  "  after  coverture,  she  (the  wife),  can- 
not enter  without  her  husband." 

In  Jackson  v.  Johnson,  5  Cow.  Rep.  74,  and  Heath  v.  White,  5  Conn. 
Rep.  228,  this  question  arose,  and  was  decided  in  accordance  with 
our  views,  and  we  think  upon  sounder  principles  than  the  cases  in 
Massachusetts,  to  which  we  have  referred. 

We  have  compared  the  provisions  of  the  Revised  Statutes  with  the 
older  statutes,  and  do  not  perceive,  that  there  is,  as  to  the  point  in 
question,  any  difference  in  their  effect.  Under  neither  would  the 
plaintiff  propose  to  claim  any  advantage  from  the  proviso.  His 
ground  is  not  that  the  ancestor  was  a  married  woman,  when  her  right 
accrued;  but  that  her  marriage  and  the  birth  of  one  or  more  children 
had  vested  a  life  estate  in  her  husband,  and  that  the  disseisin  was 
done  to  him,  and  that  no  right  of  action  accrued  to  her  in  virtue  of 
the  reversionary  interest,  under  which  her  heirs  now  claim,  until  she 
became  a  widow,  and  the  husband's  estate  had  terminated;  and  that 
the  action  is  brought  within  twenty  years  after  that  event.  This 
appears  to  us  a  correct  view  of  the  case,  and  of  the  law;  and  the 
verdict  must,  therefore,  be  set  aside  and  a 

New  trial  granted.1 


HATFIELD  v.  SNEDEN.2 
54  New  York,  280.  —  1873. 
[Reported  herein  at  p.  641.] 


1  See  Wheeler  v.  Hotchkiss,  10  Conn.  225,  reported  infra,  p.  648.  —  Ed. 

2  The  last  paragraph  on  p.  644  is  all  that  need  be  read  at  this  point.  —  Ed. 

LAW    OF    PROP.    IN    LAND  —  40 


626        ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  I. 

WATSON  v.  WATSON. 

13  Connecticut,  83.  —  1839. 

Ejectment.  Plaintiffs  are  the  children  and  heirs-at-law  of  Ann 
Watson,  deceased.  Their  father,  John  Watson,  is  still  alive,  but 
plaintiffs  offered  in  evidence  a  writing  under  his  hand  and  seal  con- 
taining the  following  declaration  and  disclaimer:  "  I  have  not,  at 
any  time  hitherto,  and  now  do  not  claim,  demand,  possess  or  in  any 
manner  or  to  any  extent  whatever,  have,  or  pretend  to  have,  any 
right,  title,  or  interest  in  [the  premises  in  question],  but  do  now 
fully,  absolutely  and  without  any  reservation,  disclaim  and  reject 
any  and  all  right,  title  and  interest  in  the  same,  which  I  might  or 
could  have  had,  by  operation  of  law  or  otherwise,  by  reason  of  my 
surviving  my  said  wife,  or  any  title  to  said  premises  which  she  had 
during  her  life."  The  writing  was  rejected  by  the  court.  Verdict 
for  defendant.     Plaintiffs  move  for  a  new  trial. 

Waite,  J.  — The  object  of  a  disclaimer  is,  to  prevent  an  estate 
passing  from  the  grantor  to  the  grantee.  It  is  a  formal  mode  of 
expressing  the  grantee's  dissent  to  the  conveyance  before  the  title 
has  become  vested  in  him.  In  some  cases,  it  may  be  highly  proper; 
as  where  a  deed  is  made  conveying  an  estate  to  one  for  life,  with  a 
remainder  to  another  in  fee.  Here,  in  the  absence  of  all  evidence 
to  the  contrary,  the  law  would  presume  the  assent  of  the  grantee  in 
remainder,  upon  delivery  of  the  deed  to  the  grantee  for  life,  for  the 
benefit  of  both.  But  if  the  remainderman  chooses  not  to  take  the 
estate,  he  may  disclaim,  and  thereby  remove  all  presumption  of 
assent.  So,  where  a  deed  is  executed  to  several  persons,  and  delivered 
to  one  for  the  benefit  of  all,  if  one  dissents,  he  may  disclaim,  and 
furnish  evidence  that  his  share  still  remains  in  the  grantor.  Tread- 
well  et  at.  v.  Buckley  et  a/.,  4  Day,  395. 

But  if  the  grantee  once  assents,  and  the  title  thereby  becomes 
vested  in  him,  he  cannot,  by  any  disclaimer,  revest  the  estate  in  the 
grantor.  For  if  he  could,  the  disclaimer  would  have  the  effect  of  a 
deed,  which  it  cannot  have;  the  object  of  the  latter  being  to  transfer 
property,  —  of  the  former,  to  prevent  a  transfer. 

But  in  a  case  of  descent,  the  heir  cannot,  by  any  disclaimer,  pre- 
vent the  estate  from  passing  to  him.  It  vests  in  him  immediately 
upon  the  death  of  the  ancestor;  and  no  act  of  his  is  required  to 
perfect  his  title.  He  cannot,  by  any  act,  cause  the  estate  to  remain 
in  the  ancestor;  for  the  latter  is  incapable  of  holding  it  after  his 
death.  Nor  can  he,  by  a  disclaimer,  transfer  the  estate  to  any  other 
person,    as    the    heir    of    the    ancestor:    for,    as    has    already    been 


II.  3-]  LIFE  ESTATES:    CURTESY.  627 

observed,  the  object  of  a  disclaimer  is  not  to  convey,  but  to  prevent 
a  conveyance.  He  is,  therefore,  in  the  same  situation,  upon  the 
death  of  the  ancestor,  as  a  purchaser  who  has  assented  to  the  con- 
veyance. In  both  cases,  a  transfer  can  only  be  made  by  some 
instrument  adapted  to  the  conveyance  of  real  estate. 

A  devisee,  however,  stands  in  the  same  situation  as  a  purchaser. 
If  he  dissents,  the  estate  passes  to  the  heir  in  the  same  manner  as 
if  no  will  had  been  made.  It  is  entirely  optional  with  him  to  take 
or  refuse  the  estate  devised.  Townson  v.  Tickell  et  al.,  3  Barn.  & 
Aid.  31. 

In  the  present  case,  the  disclaimer  was  made  by  one  who  was 
entitled  to  the  property  as  tenant  by  the  curtesy.  Is  he,  in  this 
respect,  like  a  grantee,  or  an  heir?  This  species  of  estates  has  some- 
times been  classed  with  those  acquired  by  purchase.  But  it  is  rather 
an  estate  thrown  upon  the  tenant  by  operation  of  law.  Co.  Litt. 
18  b.  It  partakes  more  of  the  character  of  an  estate  acquired  by 
descent  than  by  purchase.  Immediately  upon  the  death  of  the  wife, 
the  estate  vests  in  him.  Like  the  heir,  he  cannot,  by  refusing  to 
take  it,  cause  it  to  remain  in  the  wife;  nor  can  he,  by  a  disclaimer, 
transfer  it  to  others.  The  estate  thus  vested  in  him,  becomes  imme- 
diately liable  for  his  debts;  and  he  cannot,  by  any  refusal  to  take 
the  property,  defeat  the  claims  of  his  creditors. 

The  disclaimer  offered  in  evidence  could  have  no  effect  in  showing 
a  title  in  the  plaintiffs;  and  was  properly  rejected  by  the  court. 

We  are,  therefore,  satisfied  that  no  new  trial  should  be  granted.1 


(2.)  The  Essentials  for  Curtesy. 

(a.)  Lawful  Marriage} 

(b.)  Birth  of  issue* 

The  Chancellor  in  MARSELLIS  v.  THALHEIMER. 

In  the  analogous  case  of  a  tenancy  by  the  curtesy  it  is  well  settled 
that  the  child  must  be  born  alive  in  the  lifetime  of  the  mother  to 
entitle  the  father  to  the  estate.  And  even  the  delivery  of  the  child 
alive,  by  the  Caesarian  operation,  after  the  death  of  the  mother,  is 
not  sufficient. 

1  As  to  the  nature  of  disclaimers  in   general,  see  Jackson  ex  dem.  Ten  Eyck  v. 
Richards,  6  Cow.  (N.  Y.)  617.  —  Ed. 
4    2  See  cases  under  dower  below.  —  Ed. 

5  A  legislative  act  will  not  be  unconstitutional  because  it  defeats  the  expecta- 
tion which  the  father  of  a  living  child  had,  previous  to  the  act,  of  succeeding, 
as  tenant  by  the  curtesy,  to  any  lands  the  wife  might  acquire  subsequent  to  the 
act.      Thurber  v.    Toivnsend,  11  N.  Y.  517  (i860).  —  Ed. 


6jS     estates  as  to  quantity  and  quality.     [PT.  IV.  CH.  I. 

(<-.)   Seisin  of  wife. 

FERGUSON  v.  TWEEDY. 
43  New  York,  543.  — 1871. 

Action  by  Ferguson,  claiming  as  tenant  by  the  curtesy,  to  recover 
the  possession  and  rents  and  profits  of  certain  land.  Plaintiff  failed 
in  the  court  below  and  takes  this  appeal. 

Plaintiff's  wife,  prior  to  her  marriage,  was  tenant  in  common  with 
another  of  certain  lands.  Before  her  marriage  deeds  were  inter- 
changed between  the  co-tenants  by  which  the  lands  were  partitioned 
untd  either  should  die  without  issue  and  no  longer.  The  wife  died, 
leaving  issue  the  defendant.  The  other  co-tenant  died  leaving  no 
issue  and  this  defendant  acquired  an  interest  in  his  share.  Fergu. 
son  died  after  this  action  was  begun  and  it  is  continued  by  his 
executrix. 

Folger,  J.  — This  action  cannot  be  sustained  unless  Harvey  D. 
Ferguson,  the  testator,  had  in  his  lifetime  an  estate  as  tenant  by  the 
curtesy  in  the  premises,  or  some  part  of  them,  which  were  recovered 
in  the  action  of  the  respondents  against  Samuel  G.  Green,  judgment 
wherein  was  rendered  on  the  1st  of  February,  1861.  To  establish 
such  tenancy  there  were  needed  four  things:  Marriage,  issue  of  the 
marriage,  death  of  the  wife,  and  her  seisin,  during  marriage,  of  the 
premises  in  question.  There  is  no  dispute  but  that  all  of  these 
existed,  save  the  last. 

It  is  a  general  rule  that  to  support  a  tenancy  by  the  curtesy  there 
must  be  an  actual  seisin  of  the  wife.  Mercer  s  Lessee  v.  Selden,  1 
How.  U.  S.  37-54.  The  rule  is  not  inflexible.  There  are  exceptions 
to  it.  The  possession  of  a  lessee  under  a  lease  reserving  rent,  is  an 
actual  seisin,  so  as  to  entitle  the  husband  to  a  life  estate  in  the 
land  as  a  tenant  by  the  curtesy,  though  he  has  never  received  or 
demanded  rent  during  the  life  of  his  wife.  Ellsworth  v.  Cook,  8 
Paige,  646.  Wild,  unoccupied  or  waste  lands  may  be  constructively 
in  the  actual  possession  of  the  wife.  8  J.  R.  271.  A  recovery  in  an 
ejectment  has  been  held  equivalent  to  an  actual  entry.  8  Paige, 
supra.  And  it  has  been  held  that,  where  the  wife  takes  under  a 
deed,  and  there  is  no  adverse  holding  at  the  time,  that  actual  entry 
is  not  necessary.  Jackson  v.  Johnson,  5  Cow.  74.  But  the  facts  of 
this  case  open  not  the  door  for  any  of  these  exceptions  to  come  in. 
Before  the  marriage  of  the  testator  to  his  wife,  she  did  convey  by 
quit-claim  deed  the  premises  in  question  for  a  term  which  was  in  its 
duration  as  long  as  her  life.  The  grantee  in  that  deed,  thus  acquir- 
ing an   estate   for  her  life   in  the  lands,  did  enter,  and  he  and  his 

1    V^  V^u^  — 


V 


II.  3-]  LIFE  ESTATES:     CURTESY.  629 

assign  held  the  possession  up  to  her  death  and  afterward.  It  is  true 
that  this  deed  was  one  of  two,  interchanged  between  the  parties  to 
effect  an  amicable  partition  of  premises  held  by  them  at  that  time  in 
common.  But  the  execution  of  these  deeds,  if  followed,  as  it  was, 
by  possession  in  severalty,  was  valid  and  sufficient  to  sever  the  pos- 
session for  the  lifetime  of  the  testator's  wife.  Baker  v.  Lorillard, 
4  N.  Y.  257;  Carpenter  v '.  Schermcrhorn,  2  Barb.  Ch.  314,  21.  And 
from  the  time  of  the  execution  by  her  of  that  deed,  until  the  day  of 
her  death,  she  had  not,  nor  had  her  husband,  actual  possession  of  the 
premises;  she  nor  he  made  claim  to  the  possession  of  them;  she  nor 
he  received  rent  or  other  profit  from  them;  she  nor  he  had  right  to 
ask  possession  or  rent  or  profit.  In  short,  there  did  not  any  fact 
exist  which,  for  her  lifetime,  after  the  execution  of  the  deed,  gave 
her  a  constructive  possession  or  right  of  possession.  On  the  con- 
trary, there  did  exist  in  another,  so  far  as  she  and  her  husband  were 
concerned,  exclusive  possession,  and  right  of  such  possession,  for  a 
term  which  ran  for  her  life.  There  was,  then,  an  outstanding  estate 
for  life  in  the  premises,  which,  beginning  before  her  coverture 
began,  did  not  end  until  her  coverture  ended.  And  it  is  settled, 
that  if  there  be  an  outstanding  estate  for  life,  the  husband  cannot 
be  the  tenant  by  the  curtesy  of  the  wife's  estate  in  reversion  or 
remainder,  unless  the  particular  estate  be  ended  during  coverture. 
Stoddard  v.  Gibbs,  1  Sumner,  263-70;  In  re  Cregier,  1  Barb.  Ch.  R.  598. 

It  is  among  the  facts  found  by  the  learned  justice  before  whom 
the  action  was  tried,  that  the  possession  of  the  grantee  in  that  deed, 
and  of  his  assign,  was  actual  and  exclusive.  It  is  found,  also,  that 
neither  the  wife  of  the  testator,  nor  the  testator  himself,  did  at  any 
time  after  the  execution  of  that  deed  have  actual  possession  of  the 
premises,  or  receive  the  rents  and  profits  thereof.  And  these  find- 
ings are  upheld  by  the  proof. 

There  is  no  escape  from  the  conclusion  that  there  was  lacking  one 
of  the  essentials  in  a  tenancy  by  the  curtesy  in  favor  of  the  testator. 
This  defect  in  the  plaintiff's  case  being  fatal,  it  is  not  necessary  that 
we  examine  the  other  questions  involved. 

The  judgment  of  the  court  below  should  be  affirmed,  with  costs  to 
the  respondent. 


LESSEE  OF  BORLAND  v.  MARSHALL. 

2  Ohio  State,  308.  —  1853. 

Thurman,  J. — The  decision  of  this  cause  depends  upon  the 
answer  that  shall  be  given  to  the  following  question:  Is  a  man 
entitled  to  curtesy  in  lands,  the  title  to  which  descended  to  his  wife 


630      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

during  coverture,  but  which  were  in  the  actual  possession  of  an 
adverse  claimant  from  the  time  her  title  accrued  until  her  death.  It 
is  very  clear  that,  by  the  strict  rule  of  the  common  law,  he  is  not; 
aud  for  the  reason  that  neither  the  wife,  nor  the  husband  in  her 
right,  was,  at  any  time  during  coverture,  actually  seised  of  the 
premises.  Four  things,  according  to  the  common  law,  are  necessary 
to  create  an  estate  by  the  curtesy,  viz.:  Marriage,  seisin  of  the 
wife,  issue,  and  death  of  the  wife.  Co.  Lit.  30  a.  And  where  the 
wife's  title  is  derived  by  inheritance,  or  any  other  mode  requiring 
an  entry  to  perfect  it,  the  seisin  must  be  in  deed,  and  not  merely  in 
law.      Co.  Lit.  29  a.  ;  Jackson  v.  Johnson,  5   Cow.  98. 

But  it  is  contended,  that  in  Ohio  seisin  is  unnecessary;  and  this 
leads  us  to  inquire:  1.  What  is  the  reason  of  the  common-law  rule 
requiring  seisin?  2.  Does  the  reason  exist  in  this  State?  3.  If  it 
does  not,  is  the  maxim  applicable,  "  Ccssante  ratione,  cessat  ipsa  lex" 
the  reason  ceasing,  the  law  itself  ceases  ? 

The  books  generall)',  and  with  but  few  exceptions,  give  but  one 
reason  for  the  rule  making  seisin  indispensable  to  curtesy,  namely, 
that  as,  by  the  common  law,  livery  of  seisin  was  necessary  to  the 
transfer  of  a  freehold  estate  by  deed,  and  an  entry  necessary  to  per- 
fect the  title  to  such  an  estate,  of  an  heir  or  devisee,  it  followed 
that  unless  the  wife,  or  the  husband  in  her  right,  was  actually 
seised,  her  issue  could  never,  as  her  heirs,  inherit  the  lands;  for 
owing  to  the  want  of  actual  seisin,  she  never  acquired  an  inheritable 
estate.  But  unless  she  had  an  estate  of  inheritance  there  could  be 
no  curtesy,  as  it  was  indispensable  to  the  existence  of  curtesy  that 
the  mother  be  seised  of  an  estate  which  might  descend  to  her  heirs, 
and  "  the  tenancy  by  curtesy  is  an  excrescence  out  of  the  inheri- 
tance."    3  Bac.  Abr.  11  (Bouvier's  edition). 

Thus,  Littleton  says  (§  52):  "  And  memorandum  that,  in  every 
case  where  a  man  taketh  a  wife  seised  of  such  an  estate  of  tene- 
ments, etc.,  as  the  issue  which  he  hath  by  his  wife,  may  by  possibility 
inherit  the  same  tenements  of  such  an  estate  as  the  wife  hath,  as 
heire  to  the  wife;  in  this  case,  after  the  decease  of  the  wife,  he  shall 
have  the  same  tenements  by  the  curtesie  of  England,  but  other- 
wise not." 

Commenting  on  the  above  expression,  "  as  heire  to  the  wife,"  Coke 
'  This  doth  irriplie  a  secret  of  law,  for  except  the  wife  be 
actually  seised,  the  heire  shall  not  (as  hath  been  said)  make  himself 
heire  to  the  wife;  and  this  is  the  reason  that  a  man  shall  not  be  ten- 
ant by  the  curtesie  of  a  seisin  in  law."     Co.  Lit.  40a. 

And,  in  illustration  of  the  law  that  a  wife  must  have  an  estate 
inheritable  by  her  issue,  the  following  case  is  put:     "  If  lands  be 


II.  3-]  •    LIFE  ESTATES:     CURTESY.  63 1 

given  to  a  woman  and  to  the  heires  males  of  her  body,  she  taketh 
a  husband  and  hath  issue  a  daughter  and  dieth,  he  shall  not  be 
tenant  by  the  curtesie;  because  the  daughter  by  no  possibility  could 
inherit  the  mother's  estate  in  the  land;  and  therefore  where  Little- 
ton saith,  issue  by  his  wife  male  or  female,  it  is  to  be  understood, 
which  by  possibility  may  inherit  as  heir  to  her  mother  of  such 
estate."     Co.  Lit.    29  b. 

Blackstone  puts  the  same  case,  and  adds:  "  And  this  seems  to 
be  the  principal  reason  why  the  husband  cannot  be  tenant  by  the 
curtesy  of  any  lands  of  which  the  wife  was  not  actually  seised, 
because,  in  order  to  entitle  himself  to  such  an  estate,  he  must  have 
begotten  issue  that  may  be  heir  to  the  wife;  but  no  one,  by 
the  standing  rule  of  law,  can  be  heir  to  the  ancestor  of  any  land, 
whereof  the  ancestor  was  not  actually  seised."     2  Bla.    Com.  128. 

In  a  subsequent  passage,  he  suggests  an  additional  reason.  It  is 
as  follows:  "  A  seisin  in  law  of  the  husband  will  be  as  effectual  as 
a  seisin  in  deed,  in  order  to  render  the  wife  dowable;  for  it  is  not 
in  the  wife's  power  to  bring  the  husband's  title  to  an  actual  seisin, 
as  it  is  in  the  husband's  power  to  do  with  regard  to  the  wife's  lands; 
which  is  one  reason  why  he  shall  not  be  tenant  by  the  curtesy,  but 
of  such  lands  whereof  the  wife,  or  he  himself  in  her  right,  was 
actually  seised  in  deed."  2  Bla.  Com.  132.  The  only  authority 
referred  to  by  Blackstone,  in  support  of  the  above,  is  Co.  Lit.  31, 
where  the  diversity  between  dower  and  curtesy  is  noticed,  but  no 
such  reason  as  Blackstone  gives  for  denying  curtesy  is  stated, 
although  it  may  be  inferred. 

What  Coke  says  is  as  follows:  "  For  a  woman  shall  be  endowed 
of  a  seisin  in  law.  As  where  lands  or  tenements  descend  to  the  hus- 
band, before  entry  he  hath  but  a  seisin  in  law,  and  yet  the  wife  shall 
be  endowed,  albeit  it  be  not  reduced  to  an  actual  possession,  for  it 
lieth  not  in  the  power  of  the  wife  to  bring  it  to  an  actual  seisin,  as 
the  husband  may  do  of  his  wife's  land  when  he  is  to  be  tenant  by 
the  curtesy,  which  is  worthy  the  observation." 

As  before  observed,  it  is  only  by  inference  that  this  passage  sup- 
ports Blackstone's  remark.  It  is  to  some  extent  fortified,  however, 
by  the  following  language  in  7  Viner's  Abr.  149,  namely :  ' '  Feme  shall 
be  endowed  of  a  seisin  and  possession  in  law,  without  seisin  in  deed, 
quod  no/a;  for  otherwise  it  is  of  tenant  by  the  curtesy,  and  the 
reason  seems  to  be,  inasmuch  as  the  baron  may  enter  in  jure 
i/xoris,  but  the  feme  cannot  compel  her  baron  to  enter  into  his  own 
land." 

On  the  other  hand,  the  following  extract  from  3  Bac.  Abr.  12,  is 
certainly  opposed   to   the   existence  of  this  reason,  as  the  idea  is 


632      ESTATES   AS   TO    QUANTITY   AND    QUALITY      [PT.  IV.   CII.   I. 

rejected  that  the  allowing  or  disallowing  curtesy  is  dependent  on  the 
ability  or  inability,  industry  or  negligence,  of  the  husband. 

"  But  now  of  such  inheritances,  whereof  there  cannot  possibly  be 
a  seisin  in  fact,  a  seisin  in  law  is  sufficient;  and  therefore  if  a  man 
seised  of  an  advowson  or  rent  in  fee,  hath  issue  a  daughter,  who  is 
married  and  hath  issue,  and  he  dieth  seised,  and  the  wife  dieth  like- 
wise before  the  rent  becomes  due,  or  the  church  becomes  void,  this 
seisin  in  law  in  the  wife  shall  be  sufficient  to  entitle  her  husband  to 
be  tenant  by  the  curtesy,  because  say  the  books,  he  could  not  pos- 
sibly attain  any  other  seisin,  as  indeed  he  could  not;  and  then  it 
would  be  unreasonable  he  should  suffer  for  what  no  industry  of  his 
could  prevent.  But  the  true  reason  is,  that  the  wife  hath  these 
inheritances  which  lie  in  grant,  and  not  in  livery,  when  the  right  first 
descends  upon  her;  for  she  hath  a  thing  in  grant  when  she  hath  a 
right  to  it,  and  nobody  else  interposes  to  prevent  it." 

In  Davis  v.  Mason,  1  Pet.  507,  the  foundation  of  the  rule  is  thus 
stated  in  the  opinion  of  the  court:  "  As  it  relates  to  the  tenure  by 
curtesy,  the  necessity  of  entry  grew  out  of  the  rule,  which  invariably 
existed,  that  an  entry  must  be  made  in  order  to  vest  a  freehold  (Co. 
Lit.  51,)  and  out  of  that  member  of  the  definition  of  the  tenure  by 
curtesy  which  requires  that  it  should  be  inheritable  by  the  issue. 
When  a  descent  was  cast,  the  entry  of  the  mother  was  necessary,  or 
the  heir  made  title  direct  from  the  grandfather,  or  other  person  last 
seised." 

A  careful  examination  of  the  authorities  makes  it  quite  apparent 
that  this  is  a  correct  statement  of  the  principal,  if  not  the  only,  reason 
of  the  rule.  No  other  reason  is  found  in  the  books,  except  the  sug- 
gestion before  referred  to,  that  curtesy  is  refused  where  there  was 
no  actual  seisin,  because  the  husband  might,  by  diligence,  have 
obtained  such  seisin.  But  this  idea,  as  we  have  seen,  is  not  uni- 
versally admitted. 

Our  next  inquiry  is,  do  these  reasons,  or  either  of  them,  exist  in 
Ohio? 

That  livery  of  seisin  has  never  been  essential,  in  Ohio,  to  the 
creation  of  a  freehold  estate,  nor  an  entry  necessary  to  perfect 
the  title  of  an  heir  or  devisee,  is  well  known  to  every  lawyer. 
The  most  common  instrument  of  conveyance  is  a  deed  of  bargain 
and  sale,  which,  without  the  aid  of  a  statute  of  uses,  transfers  both 
the  legal  and  equitable  estate.  Nay,  further,  a  mere  deed  of  quit- 
claim, or  release,  is  sufficient,  even  where  the  releasee  has  no  prior 
interest  in  the  land.  But  our  departure  from  the  English  law  does 
not  stop  here;  for  an  adverse  possession  does  not  prevent  the  trans- 
fer  of  title,  either  by  deed,  descent,  or  devise.     Whatever  title  is 


II.  3-]  LIFE   ESTATES:     CURTESY.  633 

held  by  the  grantor,  ancestor,  or  testator,  may  be  thus  transferred, 
notwithstanding  the  lands  are  adversely  held  by  another.  Holt  v. 
Hemphill,  3  Ohio,  232;  Helfenstine  v.  Garrard,  7  Ohio  (pt.  1),  272; 
Hall  v.  Ashby,  9  Ohio,  96.  It  might  seem,  from  what  was  said  in 
Holt  v.  Hemphill,  that  an  adverse  possession  would  be  fatal  to  a 
deed;  but  that  such  possession  in  no  wise  affects  it  was  expressly 
decided  in  Hall  v.  Ashby. 

As,  then,  a  freehold  estate  is  created  in  Ohio  without  entry,  it  is 
manifest  that  the  principal,  if  not  the  only  reason,  of  the  rule  requir- 
ing actual  seisin  to  give  curtesy  does  not  exist  in  this  State. 

But  allowing  that  the  minor  reason  before  stated  did  exist  in 
England,  does  it  exist  here?  Ought  a  husband  to  be  denied  curtesy 
in  Ohio  upon  the  ground  that  he  might  have  entered  upon  the  land 
during  coverture,  and  that  if  he  did  not,  he  was  guilty  of  a  fault 
that  deservedly  bars  his  right?  There  may  have  been  much  reason 
for  saying  so  in  England,  when  the  rule  requiring  seisin  was  estab- 
lished; for,  by  the  failure  of  the  husband  to  enter,  the  wife  and  her 
issue  might  lose  the  estate,  which  it  was  plainly  his  duty  to  prevent, 
if  possible.  But  in  Ohio  her  title  is  as  perfect  before  as  after  entry; 
and,  in  general,  it  would  be  nothing  less  than  absurd  to  make  a 
man's  right  depend  upon  whether  he  had  gone  for  a  moment  upon 
the  land  and  "broken  a  twig,"  or  "turned  a  sod,"  or  "read  a 
deed."  There  is,  however,  one  case,  and  perhaps  but  one,  in  which, 
if  curtesy  exists,  the  heirs  of  the  wife  might  be  prejudiced  by  a 
failure  of  the  husband  to  obtain  possession,  namely,  when  by  such 
failure  the  bar  of  the  statute  of  limitations  becomes  perfect  against 
them.  But  this  would  probably  occur  so  rarely  as  to  furnish  but  a 
slight  foundation  for  the  rule  we  are  considering.  Nor  is  it  the  only 
case  in  which  a  remainderman,  or  reversioner,  may  be  powerless  to 
preserve  his  estate.  If  A,  the  owner  in  fee  of  lands  in  the  adverse 
possession  of  B,  devise  or  convey  them  to  C  for  life,  with  remainder 
to  D,  it  is  manifest  that,  as  the  statute  of  limitations  began  to  run 
against  A,  and  therefore  continues  to  run  against  C  and  D,  the 
latter  may  lose  his  estate  through  the  neglect  or  failure  of  C  to 
obtain  possession.  So,  when  the  statute  begins  to  run  against  a 
feme  sole,  and  she  afterward  marry,  she  may  lose  her  land  by  the 
neglect  or  inability  of  her  husband  to  recover  it. 

These  possible  cases  of  hardship  it  is  the  province  of  legislation 
to  guard  against,  and  not  of  the  courts.  Were  we  to  say  that  there 
shall  be  no  curtesy  where  the  possession  was  held  adversely  during 
the  coverture,  because  to  give  it  might  by  possibility  result  in  the  loss 
of  the  estate  to  the  heir,  it  is  very  probable  that,  in  guarding  against 
hardships  on  the  one  side,  we  would  open  the  door  to  quite  as  much, 


634      ESTATES   AS   TO    QUANTITY  AND    QUALITY.       [PT.   IV.   CH.  I. 

or  more,  hardship  on  the  other.  For  it  is  very  far  from  being  true 
that  the  failure  to  obtain  possession  during  the  coverture,  is  always 
attributable  to  the  husband's  neglect.  He  may  have  freely  spent 
his  time,  labor,  and  money  to  recover  the  land,  and  yet,  without  any 
fault  of  his,  be  unable  to  succeed  in  the  lifetime  of  the  wife.  Decide 
as  we  may,  doubtless  there  will  be  room  for  cases  of  hardship  to 
arise;  but,  as  was  truly  said  by  Duncan,  J.,  in  Stoolfoos  v.  Jenkins, 
8  S.  &  R.  173:  "  Courts  cannot  usurp  legislative  functions,  or  new- 
model  the  law  according  to  their  own  ideas  of  natural  justice,  or 
redress  hardships  in  each  particular  instance."  And  it  is  never  to 
be  forgotten  that  all  wise  laws  are  framed  with  a  regard  to  what  is 
likely  to  occur,  rather  than  to  that  which  is  only  possible. 

On  the  whole,  the  conclusion  to  which  we  have  arrived  is,  that 
neither  of  the  reasons  given  for  making  actual  seisin  indispensable 
to  curtesy,  affords  any  sufficient  foundation  for  the  rule  in  Ohio. 

It  remains  to  be  considered  whether  the  reason  of  the  rule  having 
ceased,  or  rather  never  having  existed  in  this  State,  the  rule  itself 
exists  here.  Tenancy  by  the  curtesy  has  always  been  known  to  our 
law  and  is  recognized  by  our  statutes.  We  cannot  deny  its  exist- 
ence; but  may  we  not  deny  the  necessity  of  a  requisite,  that  prop- 
erly enough  formed  a  place  in  the  common  law,  but  has  no  reason 
to  support  it  in  our  jurisprudence?  We  are  materially  aided  in  this 
inquiry  by  the  American  decisions  upon  the  subject  of  curtesy. 
These  decisions  may  be  reduced  into  three  classes: 

1.  Those  in  which  there  being  no  adverse  possession,  the  husband 
and  wife  were  held  to  be  constructively  seised  in  deed,  and  such 
constructive  seisin  deemed  sufficient. 

2.  Those  in  which  there  was  an  adverse  possession;  but  a  recovery 
in  ejectment,  on  the  demise  of  the  husband  and  wife  or  the  husband 
alone,  took  place  during  the  coverture;  and  in  which  there  was  held 
to  be  curtesy,  although  no  actual  possession  followed  the  recovery. 

3.  Those  in  which  an  adverse  possession  was  decided  to  be  no  bar 
to  curtesy. 

Of  the  first  class,  Jackson  v.  Sellick,  8  Johns,  208,  and  Davis  v. 
Mason,  1  Peters,  506,  may  properly,  perhaps,  be  called  the  leading 
cases.  Many  others  might  be  cited,  for  the  general  current  of 
American  authority  certainly  admits  curtesy  in  this  class  of  cases. 

( )f  the  second  class,  Ellsworth  v.  Cook,  8  Paige,  643,  is  the  leading 
1  ase. 

To  the  third  class  belongs  Bush  v.  Bradley,  4  Day,  298,  approved 
in  Chew  v.  Cotnm'rs  of  Southwark,  2  Rawle,  160,  etc. 

Now,  a  careful  scrutiny  of  these  cases  will  show  that,  in  nearly  all 
of  them,  the  decisions  were  arrived  at  by  an  application  of  the  maxim 


II.  3  J  LIFE  ESTATES:     CURTESY.  635 

"cessanie  ratione,  cessat  ipsa  lex."  It  was  so  expressly  declared  in 
Davis  v.  Mason.  That  case  respected  lands  in  Kentucky.  After 
giving,  in  the  passage  hereinbefore  quoted,  the  reason  of  the  rule 
requiring  seisin,  the  judge,  who  delivered  the  opinion  of  the  court, 
went  on  to  say:  "  But  in  Kentucky,  we  understand,  the  livery  of 
seisin  is  unheard  of.  Freeholds  are  acquired  by  patent,  or  by  deed, 
or  by  descent,  without  any  further  ceremonies;  and  in  tracing  pedi- 
gree, the  proof  of  entry,  as  successive  descents  are  cast,  is  never 
considered  as  necessary  to  a  recovery,  or  in  any  mode  affecting  the 
course  of  descent.  If  a  right  of  entry  therefore  exists,  it  ought  by 
analogy  to  be  sufficient  to  sustain  the  tenure  acquired  by  the  hus- 
band, where  no  adverse  possession  exists;  as  it  is  laid  down  in  the 
books  relative  to  a  seisin  in  law,  '  he  has  the  thing,  if  he  has  a  right 
to  have  it.'  Such  was  not  the  ancient  law;  but  the  reason  of  it  has 
ceased.  It  has  been  shown,  that  in  the  most  remote  periods  excep- 
tions had  been  introduced  on  the  same  ground;  and  in  the  most 
modern,  the  rule  has  been  relaxed  upon  the  same  consideration.  We 
ought  not  to  be  behind  the  British  courts  in  the  liberality  of  our 
views  on  the  subject  of  this  tenure." 

So  in  Jackson  v.  Sellick,  the  court  said:  '*  We  must  take  the  rule 
(requiring  seisin)  with  such  a  construction  as  the  peculiar  state  of 
new  lands  in  this  country  require." 

Both  these  cases  seem  to  proceed  on  the  ground  that  the  wife, 
though  not  actually,  was  yet  constructively  seised  in  deed.  Hence 
the  allusion,  in  each  case,  to  the  fact  that  there  was  no  adverse  posses- 
sion to  rebut  the  presumption.  The  question  whether  an  adverse 
possession  would  be  fatal  to  the  claim  to  curtesy  was  not  presented. 
The  cases  in  effect  decide,  not  that  seizin  in  deed  is  indispensa- 
ble, but  that,  if  there  must  be  seisin,  a  constructive  seisin  is  suffi- 
cient. But  in  Bush  v.  Bradley,  the  question  was  directly  raised.  The 
premises,  during  the  whole  period  of  the  coverture,  were  adversely 
held  by  a  third  person.  Yet  the  husband  was  adjudged  to  be  tenant 
by  the  curtesy.  The  real  estate  law  of  Connecticut  was,  in  all 
respects,  material  to  the  present  inquiry,  the  same  as  that  of  Ohio; 
and  the  court  held  that,  as  the  reason  of  the  rule  requiring  seisin 
did  not  exist,  seisin  was  unnecessary,  and  that  the  symmetry  of  the 
law  required  this  decision.  To  the  same  effect  is  the  following 
language  of  the  court  in  Stoolfoss  v.  Jenkins,  8  S.  &  R.  175:  "  The 
actual  seisin  of  the  husband  during  coverture  is  necessary  to 
entitle  him,  as  tenant  by  the  curtesy,  by  the  common  law;  though 
such  actual  seizin  by  the  husband  is  not  necessary  by  our  law,  if 
there  be  a  potential  seisin,  or  right  of  seisin.  This  has  been 
decided  to  be  sufficient  in  this   State."      This  ruling,   as   well  as 


6$6      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV. CH.  I. 

the  case  of  Bush  v.  Bradley,  was  approved  in  the  case  in  5  Rawle, 
160,  before  cited,  the  court  holding  that  it  was  sufficient  to  entitle 
the  husband  to  curtesy  that  the  wife  owned  the  land  and  had  a 
right  "  to  demand  and  recover  the  immediate  possession  thereof." 

In  the  light  of  these  decisions,  and  the  considerations  upon  which 
they  rest,  we  can  hardly  err  in  holding  that  the  reason,  or  reasons 
of  the  rule  requiring  seisin  in  deed,  having  no  existence  in  Ohio,  the 
rule  itself  does  not  exist.  And,  certainly,  the  symmetry  of  our  law 
demands  this.  It  would  be  strange  indeed,  and  only  lead  to  con- 
fusion and  perplexity,  if,  while  every  other  tenancy  may  be  created 
in  this  State  without  entry,  or  regard  to  the  fact  of  adverse  posses- 
sion, a  tenancy  by  the  curtesy  could  not.  Nor  does  a  rule  strongly 
commend  itself  to  the  good  sense  of  men  that  makes  the  existence 
of  the  estate  depend  upon  an  almost,  or  quite,  imaginary  distinction 
between  seisin  in  law  and  constructive  seisin  in  deed.  The  con- 
structive seisin  relied  on  in  Jackson  v.  Scllick,  Davis  v.  Mason,  and 
Ellsworth  v.  Cook,  was  in  substance  nothing  but  a  seisin  in  law.  It 
is  a  mere  fiction  to  say  that  a  man  is  actually  possessed  of  that  which 
is  in  no  one's  possession,  and  it  is  plainly  untrue  to  say  so  when  the 
thing  is  in  the  possession  of  another.  The  reasoning  of  the  courts 
in  all  these  cases,  if  carried  to  its  legitimate  result,  makes  seisin  in 
deed,  either  actual  or  constructive,  wholly  unnecessary;  and  this 
result  is  not  in  conflict  with  the  principles  of  the  common  law.  For 
even  at  common  law,  a  seisin  in  law  is  sufficient  to  give  curtesy  in 
all  inheritances  created  without  entry.  3  Bac.  Abr.  12;  Jackson  v. 
Johnson,  5  Cow.  98;  Ellsworth  v.  Cook,  8  Paige,  643.  It  is  therefore 
a  mere  application  of  a  common-law  principle  to  say  that  a  seisin  in 
law  is  sufficient  in  Ohio,  where  in  no  case  is  an  entry  necessary  to 
create  an  inheritance.  In  the  case  before  us,  Mrs.  Borland  was 
seised  in  law,  for  "  seisin  in  law  is  a  right  to  lands  and  tenements, 
though  the  owner  is  by  wrong  disseised  of  them."  6  Jacob's  Law 
Die.  41.  Her  husband,  there  being  issue  born,  became  tenant  by 
the  curtesy,  and  as  he  was  yet  in  life  when  the  ejectment  was  brought 
by  her  heirs,  the  common  pleas  did  right  to  nonsuit  them. 

The  decision  of  this  case  also  decides  the  case  of  Doe  ex  dan. 
Hunter  et  al.  v.  Durrel ;  the  only  difference  in  the  cases  being  that 
there  was  an  adverse  possession  in  the  one  and  not  in  the  other. 


II.  3]  LIFE    ESTATES:     CURTESY.  637 

{d.)  Death  of  wife. 
WHEELER  v.  HOTCHKISS. 

10  Connecticut,  225. —  1834. 
{Reported  herein  at  p.   646.  J 


WATSON  v.  WATSON. 

13  Connecticut,  83.  —  1839. 

[Reported  herein  at  p.  626.] 

(e.)  Need  not  all  coincide  in  time. 

HUNTER  v.  WHITWORTH. 

9  Alabama,  965.  —  1846. 

Collier,  C.  J.  —  It  is  laid  down  in  general  terms,  by  elementary- 
authors,  that  where  a  man  marries  a  woman  seised  of  an  estate  of 
inheritance  in  lands,  and  has  by  her  issue  born  alive,  which  was 
capable  of  inheriting  her  estate,  he  shall  on  the  death  of  his  wife, 
hold  the  lands  for  his  life,  as  tenant  by  the  curtesy.  2  Black.  Com. 
126;  Steph.  Com.  24;  1  Lomax,  65-6.  Whether  this  estate  is  a  conse- 
quence of  feudal  tenure,  is  a  point  perhaps  upon  which  all  are  not 
agreed;  it  is,  however,  stated  by  all  the  text-writers,  that  the  hus- 
band is  the  natural  guardian  of  the  child,  and  as  such,  is  in  reason 
entitled  to  the  profits  of  the  land,  in  order  to  maintain  it.  "  As 
soon,  therefore,  as  any  child  was  born,  the  father  began  to  have  a 
permanent  interest  in  the  lands,  he  became  one  of  the  pares  curtis, 
did  homage  to  the  lord,  and  was  called  tenant  to  the  curtesy  initiate; 
and  this  estate  being  once  vested  by  the  birth  of  a  child,  was  not 
suffered  to  determine  by  the  subsequent  death  or  coming  of  age  of 
the  infant."  There  are  four  requisites  to  constitute  a  tenancy  by 
the  curtesy,  viz. :  Marriage,  seisin  of  the  wife,  issue  born  alive,  and 
the  death  of  the  wife.     See  the  citations  above. 

It  has  been  held  not  necessary  that  there  should  be  seisin  and 
issue  at  the  same  time;  and  therefore  if  the  wife  become  seised  of 
lands  during  the  coverture,  be  afterwards  disseised  and  then  have 
issue,  the  husband  shall  be  tenant  by  the  curtesy  of  those  lands  So 
if  the  wife  becomes  seised  after  issue  born,  though  the  issue  die 
before  the  seisure.  Jackson  v.  Johnson,  5  Cow.  Rep.  74;  see  also, 
2  Conn.  Rep.  565;  5  Id.  236.  In  Heath  v.  White,  5  Conn.  Rep.  235, 
it  was  said,  though  the  tenure  by  curtesy  may  have  originated  from 


638      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CII.  I. 

the  husband's  obligation  to  support  his  children,  yet  the  extent  of 
his  interest  is  not  measured  by  this  reason  for  its  introduction.  He 
is  entitled  to  hold  for  life,  whether  his  children  need  his  support  or 
not,  and  whether  they  live  an  hour  only  or  to  old  age.  And  it  has 
been  decided  in  this  State  that  a  decree  of  divorce,  a  mensa  et  thoro, 
pronounced  against  the  husband,  does  not  bar  him  of  the  right  of 
curtesy.     Smootv.  Lecatt,  1  Stew.  Rep.  590. 

Where  B.  devised  the  whole  of  his  estate  to  his  daughter,  "  to  her, 
her  heirs  and  assigns  forever,"  but  if  she  should  die  without  issue, 
his  whole  estate  was  to  be  sold  by  his  executors,  and  the  money  aris- 
ing therefrom,  after  his  widow's  decease,  to  be  equally  divided  among 
his  brother's  and  sister's  sons.  The  daughter  married,  and  had 
issue  which  died  during  her  life.  Yet  it  was  held  that  the  husband 
was  entitled  to  her  estate,  as  tenant  by  the  curtesy.  Buchanan  v. 
Sheffer,  2  Yeates'  Rep.  374.  We  cite  these  cases  to  show  the  favor 
with  which  the  law  regards  this  description  of  estate,  with  what 
liberality  it  extends  it,  even  beyond  the  object  for  which  its  intro- 
duction was  mainly  intended  to  provide;  that  it  is  protected, 
although  the  wife  is  absolved  from  the  obligation  of  living  with  her 
husband,  in  consequence  of  some  fault  of  his;  and  that  even  the 
express  terms  of  a  devise  shall  be  so  construed  as  not  to  divest  a 
tenancy  by  the  curtesy,  if  the  husband's  right  once  attached.  Hav- 
ing said  thus  much  in  respect  to  the  estate  in  general,  we  now  pro- 
ceed to  consider  it  in  reference  to  the  statutes,  which  it  is  insisted 
for  the  plaintiff  in  error,  are  decisive  of  the  case  at  bar.  By  the  act 
of  1806,  for  the  regulation  of  descents,  and  the  distribution  of  estates, 
among  other  things,  it  is  enacted,  "  Where  a  man  having  by  a  woman 
a  child,  or  children,  shall  afterwards  intermarry  with  such  woman, 
such  child  or  children,  if  recognized  by  him,  shall  be  thereby  legiti- 
mated." Clay's  Dig.  168,  §  3.  The  act  of  1811,  "  concerning 
bastardy,"  provides,  that  if  the  mother  of  a  bastard  child  and  the 
imputed  father  shall,  at  any  time  after  its  birth,  intermarry,  the  child 
shall  in  all  respects  be  deemed  and  held  legitimate,  conformably  to 
the  maxim  of  the  civil  law.  Clay's  Dig.  134,  §  6;  see  also  Croke 
on  Illegitimacy,  95. 

By  legitimating  a  bastard,  we  are  to  understand  that  he  is  placed 
in  the  same  state  as  if  he  were  born  in  wedlock,  that  is  in  a  lawful 
manner.  Marriage  is  considered  by  all  civilized  nations  as  the  source 
of  legitimacy;  the  qualities  of  husband  and  wife  must  be  possessed 
by  the  parents  in  order  to  make  the  offspring  legitimate,  where  the 
municipal  law  does  not  otherwise  provide.  See  the  Civil  Code  of 
Lou.  Arts.  203  to  216.  In  the  same  work  it  is  declared  that  chil- 
dren   born    out   of    marriage,  except   the  fruit  of  an  incestuous  or 


II.  3-]  LIFE  ESTATES:     CURTESY.  639 

adulterous  connection,  may  be  legitimated  by  the  subsequent  mar- 
riage of  their  father  and  mother,  whenever  they  have  legally  acknowl- 
edged them  as  their  children.  And  children  legitimated  by  a 
subsequent  marriage  ha^e  the  same  rights  as  if  they  were  born  during 
marriage.     Id.  Arts.  217,  219. 

Marriage  then  is  regarded  as  the  primary  essential  to  legitimacy, 
and  the  produce  of  an  illicit  connection  are,  in  a  legal  sense,  expur- 
gated when  the  parents  form  such  a  union.  The  law  regards  such  a 
child  for  all  purposes  as  if  born  in  wedlock  —  the  duties  and  obliga- 
tions which  such  a  child  and  its  parents  respectively  owe  to  each 
other,  are  precisely  the  same  as  if  marriage  had  preceded  its  birth. 
It  can  inherit  and  transmit  the  inheritance  in  consequence  of  its 
paternity,  to  and  from  the  relatives  of  the  father.  No  matter  from 
what  source  the  tenancy  by  the  curtesy  takes  its  origin  or  upon  what 
reasoning  it  originally  rested,  the  rights  and  duties  of  the  father  in 
respect  to  such  a  child  are  the  same  in  all  respects  as  if  he  had 
been  legitimate  from  his  birth. 

If  what  we  have  said  be  well  founded,  the  father  is  under  a  legal  as 
well  as  moral  obligation  to  provide  for  his  legitimated  offspring, 
above  what  the  law  requires  him  to  do  for  a  bastard  child.  To 
enable  him  to  perform  the  duty  of  maintenance,  we  think  he  clearly 
must,  at  common  law,  be  entitled  to  the  lands  of  which  the  wife  was 
seised  during  coverture.  That  this  much  favored  estate  by  the 
curtesy  may  be  upheld  and  secured,  the  husband  may,  by  a  kind  of 
legal  fiction, //t?  re  nata,  be  presumed  to  have  married  previous  to 
the  birth  of  the  child.  This  presumption  could  do  harm  to  no  one, 
as  it  would  not,  of  course,  be  carried  so  far  as  to  divest  interests 
which  the  wife  had  passed  from  herself  between  the  birth  of  the 
child  and  the  marriage. 

Having  attained  a  conclusion  favorable  to  the  plaintiff  in  error 
upon  the  first  point,  we  need  not  consider  the  second.  Let  the 
judgment  be  reversed  and  the  cause  remanded.1 


(3.)  To  What  Estates  Curtesy  is  an  Incident. 
(a.)  In  general. 

HOUGHTON  v.  HAPGOOD. 

13  Pickering  (Mass.),  154.  —  1832. 

[Reported  herein  at  p.  24.] 


1  In  this  case  all  of  the  children  were  born  before  the  marriage  of  their 
parents.  In  New  York  "An  Act  to  legitimize  children  whose  parents  have 
intermarried  after  the  birth  of  such  children  "  was  passed  in  1895,  ch.  531,  and 
Is  now  §  18  of  the  Domestic  Relations  Law.  —  Ed. 


64O      ESTATES   AS   TO  QUANTITY   AND    QUALITY.       [PT.  IV.  CM.   I. 

FERGUSON  v.  TWEEDY. 

43  New  York,  543.  —  1871. 

{Reported  herein  at  p.  628.] 


Howard,  J.,  in  WASS  v.  BUCKNAM. 

38  Maine,  356.  —  1854. 

"Petition  for  partition."  The  entry  of  one  tenant  in  common 
into  the  common  estate,  and  his  subsequent  possession  is  presumed 
to  be  the  entry  and  possession  of  all  the  co-tenants,  unless  otherwise 
explained  and  controlled.  Each  has  a  right  to  the  possession  of  the 
whole  estate;  and  such  is  the  character  of  their  estate  that  such  pos- 
session is  necessary  for  the  full  enjoyment  of  their  legal  rights 
respectively.  So  if  one  occupy  the  whole  estate,  it  is  not  necessarily 
nor  by  presumption  of  law,  adverse  to  his  co-tenants;  but  is  in 
accordance  with  his  title,  and  consistent  with  his  rights,  and  in  sup- 
port of  their  common  title.  He  is  presumed  to  be  in  of  right,  and 
not  for  the  purpose  of  excluding  his  co-tenants,  or  with  the  intention 
of  effecting  an  ouster  or  disseisin. 

There  is  no  satisfactory  evidence  that  the  respondents,  and  those 
under  whom  they  claim,  ever  asserted  an  exclusive  right,  or  mani- 
fested an  intention  to  hold  the  estate  adversely  to  their  co-tenants. 
The  evidence  of  the  character  ot  their  occupation  and  improvement, 
is  consistent  with  the  legal  rights  and  interests  of  all  concerned. 
Whether  there  were  any  surplus  rents  and  profits,  or  in  what  manner 
the  rents  received  were  disposed  of,  does  not  appear. 

Anna,  the  mother  of  the  petitioners,  was  seised  in  her  own  right, 
of  her  interest  in  the  premises,  in  common  with  the  co-tenant,  under 
whom  the  respondents  claim,  his  seisin  as  co-tenant  being  as  well 
for  her  as  himself;  and  upon  her  death,  her  husband  became  tenant 
by  the  curtesy,  and  her  children  were  entitled  to  the  remainder,  and 
to  her  interest  upon  the  termination  of  the  particular  estate  of  the 
husband  by  his  death.  Jackson  v.  Sellick,  8  Johns,  202,  207;  Davis 
v.  Nason,  1  Peters,  507,  50S;  4  Kent's  Com.  29,  30.  Where  it  is 
shown  that  the  rigid  doctrine  of  the  English  law,  requiring  the  wife 
to  be  seized  in  fact  and  in  deed,  in  order  to  entitle  the  husband  to 
his  curtesy,  has  been  modified  and  relaxed  in  favor  of  his  right. 

If,  during  the  life  of  the  husband,  there  was  an  adverse  possession 
of  the  estate  for  more  than  forty  years,  as  claimed  by  the  respond- 
ents, it  would  not  defeat  the  petitioners.  So  long  as  they  were  out 
of  possession,  and  without  the  right  or  power  to  acquire  it,  as  was 


II.  3-]  LIFE  ESTATES:     CURTESY.  641 

the  case  during  the  tenancy  of  the  husband,  no  possession  of  another 
could  be  adverse  to  them,  and  no  law  of  limitation  could  affect  them. 
The  law  will  not  suffer  a  party  to  be  so  far  circumvented  as  to  be 
deprived  of  his  interests  under  its  sanctions,  and  for  the  imputed 
laches  of  others,  while  it  renders  him  incompetent  to  assert  his 
rights.  2  Salk.  423;  Dow  v.  Danvers,  7  East,  321;  Jackson  v. 
Sc/ioonmaker,  4  Johns,  401;    Whitam  v.  Perkins,  2  Maine,  400." 


{p.)  Fees  subject  to  executory  /imitation. 

HATFIELD  v.  SNEDEN. 

54  New  York,  280.  —  1873. 

Ejectment  by  an  executory  devisee  against  the  husband  of  the 
(deceased)  owner  of  the  estate  which  was  subject  to  the  executory 
devise.  Plaintiff  succeeded  below  and  defendant  appeals  to  this 
court. 

Johnson,  C.  —  Upon  the  true  construction  of  the  will  of  Mary 
Wood,  the  estate  of  her  daughter  was  a  fee  determinable  upon  the 
happening  of  the  events  on  which  the  devise  to  the  plaintiff  was  to 
take  effect.  The  language  of  the  primary  devise  is  to  the  daughter 
and  her  heirs  forever.  Then  followed  a  clause  which,  in  the  event 
of  the  return  to  the  county  of  the  son  of  the  testatrix  (the  son  was 
supposed  lost  at  sea),  gave  them  the  estate  in  equal  shares.  The 
testatrix  further  directed  that  if  the  daughter  should  never  have  any 
children,  or  a  child  living  at  her  decease,  if  her  son  should  not  return 
then  the  devised  estate  was  to  go  to  the  plaintiff  in  fee. 

In  the  first  place  it  is  to  be  observed  that  the  earlier  part  of  the 
phrase  in  respect  to  the  daughter's  issue  is  inoperative  and  meaning- 
less, taken  in  connection  with  the  latter  part  of  the  same  clause.  If 
the  daughter  had  no  child  living  at  her  decease,  it  was  of  no  conse- 
quence how  many  she  might  have  had  at  an  earlier  period.  If  she 
had  a  child  living  at  her  decease,  then,  of  course,  it  could  not  be 
true  that  she  never  had  any  children.  The  substance  of  the  whole 
clause  is  the  same  as  if  the  testatrix  had  said,  if  my  daughter,  at  her 
decease,  leaves  no  child  living,  and  if  my  son  does  not  return,  then 
the  estate  is  to  go  to  the  plaintiff  in  fee.  The  concurrence  of  both 
these  events  was  necessary  to  carry  the  estate  to  the  plaintiff.  If 
the  son  returned,  Hatfield  took  nothing  irrespective  of  the  question 
of  the  daughter  leaving  a  child  living.  If  the  daughter  left  a  child 
living,  and  the  son  did  not  return,  Hatfield  took  nothing,  and  her 
issue  living  at  her  death  would  not  have  taken  under  the  testatrix's 

LAW  OF  PROP.  IN  LAND — 41 


642      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

will,  but  by  descent  from  their  mother,  out  of  the  fee  devised  to 
her,  which  had  not  been  defeated  by  the  prescribed  events. 

The  return  of  the  son,  and  the  death  of  the  daughter,  without 
leaving  a  child  surviving  her,  were  events,  which,  from  their  nature, 
would  be  determined  within  their  two  lives,  and  there  is  no  objec- 
tion on  the  ground  of  remoteness  to  the  executory  devise  in  favor 
of  the  plaintiff.  Nor  is  there  any  question  that  both  events  on  which 
the  executory  devise  over  to  him  was  to  take  effect  have  been  deter- 
mined in  his  favor.  The  son,  who  had  been  absent  three  years  in 
October,,  185 1,  when  Mary  Wood  made  her  will,  had  not  returned  or 
been  heard  of  in  March,  1861,  when  the  daughter  died  without  a  sur- 
viving child.  There  is,  therefore,  such  a  presumption  of  his  death 
that  his  return  may  be  taken  to  have  become  impossible  before  the 
death  of  the  daughter. 

Nothing  then  stands  in  the  way  of  the  plaintiff's  recovery,  unless 
the  defendant  has  an  estate  as  tenant  by  the  curtesy  by  reason  of  his 
marriage  to  the  daughter  and  the  birth  of  their  living  child  during 
the  marriage,  who  might,  if  she  had  outlived  the  mother,  have 
inherited  the  whole  estate  in  question.  The  defendant  was,  there- 
fore, entitled  to  curtesy  if  the  estate  of  his  wife  was  such  that  curtesy 
could  be  had  of  it.  The  point  thus  presented  has  been  the  subject 
of  elaborate  discussion  in  the  text-books,  and  of  criticism  upon  the 
case  of  Buckworth  v.  T/u'rke//,  decided  by  Lord  Mansfield,  and 
reported  in  4  Doug.,  323,  Collect.  Jur.  332;  3  B.  &  P.  652  n.,  and 
upon  that  of  Moody  v.  King,  2  Bing.  447,  which  fully  upholds  it  after 
it  had  been  spoken  of  with  disapprobation  by  Lord  Alvanley  in  Doe 
v.  Hutton,  3  B.  &  P.  643,  651.  The  discussion  has  been  so  full  and 
complete  that  it  seems  impossible  to  throw  any  additional  light  upon 
the  views  and  various  arguments  which  have  been  adduced  upon  it. 
The  most  accurate  and  comprehensive  discussion  which  I  have  found 
upon  the  subject  is  in  Washburn's  Law  of  Real  Property,  vol.  1, 
§§  11  to  21,  of  ch.  6,  of  book  1,  pp.  131-135,  and  §§  31  to  ^^,  of  ch. 
7,  of  the  same  book,  pp.  212-217,  in  which  the  cases  in  England  and 
in  the  United  States  are  stated  and  examined  with  ability.  There 
results  a  division  of  opinion  in  the  courts  which  is  irreconcilable, 
and  in  respect  to  which,  additional  discussion  is  not  likely  to  afford 
advantage.  To  restate  and  reconsider  this  full  discussion  could 
only  serve  to  incumber,  by  a  useless  parade  of  cases,  the  already  too 
voluminous  reports.  The  conclusion  which  is  stated  in  the  work 
cited  (p.   135,  §  21)  is: 

"  If  the  estate  of  the  wife  be  an  estate  of  inheritance,  determin- 
able by  a  limitation  which  operates  to  defeat  her  estate  at  common 
law  the  right  of  curtesy  is  gone.      But,  if  the  limitation  over  be  by 


II.  3-]  LIFE  ESTATES:     CURTESY.  643 

way  of  springing  use,  or  executory  devise,  which  takes  effect  at  her 
decease,  thereby  defeating  or  determining  her  original  estate,  before 
its  natural  expiration,  and  substituting  a  new  one  in  its  place,  which 
could  not  be  done  at  common  law,  the  seisin  and  estate  which  she 
had  of  the  fee  simple  or  tail  will  give  the  husband  curtesy."     It  may 
properly  be  added   that  the  strong  objection  proposed  to  this  doc- 
trine by  its  critics,  is  to  the  consequence  which  they  deem  unreason- 
able, that  an  estate  determined  according  to  the  terms  of  its  creation 
should  by  the  incident  of  curtesy  or  dower  be  prolonged.     To  this, 
it  seems  to  me  a  fair  and  complete  answer  to  say,  as  Lord  Coke  says 
in  Paine  s  Case,  4  Coke  R.,  part  VIII. ,  Frazer's  ed.,  p.  212,  marg. 
36  a,  in  answer  to  a  similar  difficulty  as  to  curtesy  after  an  estate 
tail  determined  by  the  death  of  the  wife,  tenant  in  tail,  and  of  her 
issue,  "the  husband's  estate  shall  continue,  for  it  is  not  derived 
merely  out  of  the  estate  of  the  wife,  but  is  created  by  law,"  "  by 
the  privilege  and  benefit  of  the  law  tacite  annexed  to  the  gift."    This 
possible  continuance  of  dower  or  curtesy  as  an  incident  of  the  estate 
created  may  well  be  deemed  to  have  been  in  the  contemplation  of 
the  testatrix,  and  is  not  an  unreasonable  or  unnatural  provision  for 
the  possible  husband  or  wife  of  one  clothed  with  a  fee  simple  not 
defeasible,  except  upon  death  without  children   living.     The  only 
authority  in  this  State  in  conflict  with  this  conclusion  is  a  decision 
at  Special  Term  in  Wcller  v.  Welter,  28  Barb.  588,  in  a  case  of  dower, 
which  was  put  upon  the  ground  of  the  criticism  in  Park  on  Dower, 
upon  Lord  Mansfield's  decision.     The  decision  at  General  Term  in 
the  present  case  seems  to  have  gone  upon  the  ground  that  the  inter- 
est given  by  the  will  of  Mary  Wood  to  her  daughter  was  a  life  estate 
only,  with  remainder  to  her  issue,  if  any,  as  purchasers.     This  con- 
struction we  have  seen  could  not  have   been  maintained,  Hatfield  v. 
Sneden,  42  Barb.  615.     There  is  another  aspect  of  this  case  which, 
from   the  record,  appears   to  have  existed,  or  been  in  the  highest 
degree  probable,  viz.,  that  the  daughter  was,  at  her  mother's  death, 
her   only  heir-at-law.     In   that  case  she   would    have   been    in    by 
descent  in  fee,  and  the  only  effect  of  the  devise  would  be  to  create 
an  executory  limitation  to  Hatfield  in  case  of  the  concurrence  of 
the  two  events  on  which  the  estate  is  given  over.     That  she  would 
have  been  in  by  descent  the  preferable  title,  and  not  by  the  devise, 
is  obvious.     Doe  v.  Timins,  1  B.  &  Aid.  530.     In  that  case  it  would 
be  difficult  to  take  from  the  estate  in  fee  any  of  the  incidents  which 
the  law  has  attached  to  such  an  estate,  and  impossible  to  deny  that 
her  husband  was  entitled  to  curtesy  according  to  every  definition 
given  in  the  books  of  such  an  estate.     In  this  aspect  we  may  take 
it  that  the  will  is  silent  about  the  absent  son  and  his  possible  return, 


644      ESTATES   AS   TO  QUANTITY   AND    QUALITY.      [PT.  IV.   CH.  I. 

and  silent  about  the  daughter,  except  as  both  are  mentioned  in 
limiting  the  executory  devise.  That  no  estate  is  devised  either  to 
son  or  daughter,  but  that  the  only  provision  of  the  will  is,  if  my  son 
shall  not  return,  and  my  daughter  shall  die,  leaving  no  child  living, 
then  I  devise  to  Hatfield.  Under  such  a  will  the  daughter  would 
take  just  what  the  will  in  question  gave  her,  and  for  exactly  the 
same  estate.  Being  thus  in  by  descent,  there  is  in  the  books  not 
only  no  warrant  of  authority,  but  not  even  a  suggestion  that  the 
estate  in  fee  by  descent  can  be  deprived  of  any  of  the  lawful  inci- 
dents belonging  to  estates  in  fee.  It  is  not  until  those  are  exhausted 
that  the  executory  devise   to  Hatfield  can  take  effect  in  possession. 

It  may  be  regarded  in  another  aspect,  equally  pointing  to  the  same 
result.  If  the  devise  had  created  an  estate  tail  (supposing  such  an 
estate  could  at  that  date  have  been  created  in  this  State),  and  it  had 
been  limited  in  tail  general  to  the  daughter,  with  remainder  in  fee 
simple  to  the  plaintiff,  that  estate  in  the  event  which  has  happened 
would  have  had  the  same  duration  as  the  fee  given  to  her  in  this 
case.  It  would  have  terminated  with  her  life,  the  issue  in  whom 
alone  it  could  have  continued  having  died  before  her.  Yet,  in  that 
case,  the  husband's  right  to  curtesy  would  have  been  clear  beyond 
all  question.  It  would  seem  not  a  little  singular  that  the  greater 
estate,  the  fee  simple  which  this  daughter  took,  either  by  descent  or 
devise,  should  not  avail  to  give  her  husband  that  which  he  unques- 
tionably would  have  taken  had  her  estate  been  of  an  inferior  quality 
and  less  than  a  fee  simple. 

Again,  leaving  out  of  view  all  technical  aspects  of  the  case,  and 
looking  only  to  the  general  intention  of  the  testatrix,  it  is  obvious 
that  she  did  not  mean  the  plaintiff  to  take  anything  unless  her  two 
children  should  be  dead,  and  should  have  left  no  children  living. 
She  knew  that  the  son  had  no  children,  and  was  probably  dead,  btat 
if  he  came  back  he  and  the  daughter  were  each  to  have  a  half.  If 
he  did  not  return,  the  daughter  was  to  have  the  whole,  but  if  she  died 
leaving  no  child,  then,  her  descendants  being  extinct,  the  estate  was 
to  go  to  plaintiff.  Her  purpose  was  not  to  lower  the  quality  of  her 
daughter's  estate  or  to  deprive  it  of  the  ordinary  incidents  of  estates 
in  fee,  but  only  to  give  it  over  when  there  should  remain  no  longer 
any  one  to  hold  it  representing  her  daughter. 

The  only  remaining  question  is  as  to  the  effect  of  the  married 
woman's  acts  of  1848  and  1849  upon  the  law  in  respect  to  curtesy. 
After  sundry  conflicting  decisions,  the  law  has  become  substantially 
settled,  that  while  those  acts  excluded  the  husband  during  life  from 
control  of,  or  interference  with,  his  wife's  separate  real  and  personal 
estate,  and   gave  to   her  alone  the  power  of  disposition  by  deed  or 


II.  3-]  LIFE  ESTATES:     CURTESY.  645 

will,  yet  they  left  the  husband  the  right  of  curtesy  in  her  real  prop- 
erty and  of  administration  for  his  own  benefit  of  her  personalty,  in 
so  much  as  remained  at  her  death  undisposed  of  and  unbequeathed 
Matter  of  JFinne,   2   Lansing,    21;  Ransom  v.  Nichols,  22  N.  Y.  no- 
and  Barnes  v.  Underwood,  47  Id.  351. 

The  judgment  should   be  reversed,  and    judgment  rendered   for 
defendant  on  the  verdict,  with  costs. 


(4.)  How  Curtesy  May  Be  Defeated. 

(a.)  Alienage  of  husband. 

Putman,  J.,  IN    FOSS    V.  CRISP. 

20  Pickering  (Mass.),  121,  124.  — 1838. 

It  is  found  in  the  case,  that  Sarah,  after  the  death  of  her  husband 
Varney,  married  Antonio  Crisp,  the  tenant,  by  whom  she  had  one 
child,  Antonio  Crisp,  Junior,  now  living:  and  that  Antonio  Crisp 
was  an  alien,  a  native  of  Spain,  and  that  he  made  his  primary 
declaration  of  an  intent  to  become  a  citizen  of  the  United  States,  in 
the  lifetime  of  Sarah,  his  wife,  and  was  in  fact  naturalized  after  her 
death. 

And  the  question  made  for  him  is,  whether  or  not  he  is  entitled 
to  hold  the  premises  as  a  tenant  thereof  by  the  curtesy. 

In  the  case  of  Wilbur  v.  Tobey,  16  Pick.  179,  the  Chief  Justice, 
for  the  whole  court,  stated  the  law  to  be  without  doubt,  "  that  an 
alien  can  take  real  estate,  by  deed  or  devise,  or  other  act  of  pur- 
chase, but  cannot  hold  against  the  commonwealth;  he,  therefore, 
takes  a  defeasible  estate,  good  against  all  except  the  commonwealth, 
and  good  against  them,  until  they  institute  proceedings,  and  obtain 
a  judgment  by  inquest  of  office.  But  an  alien  cannot  take  by  act  of 
law,  as  descent,  because  the  law  will  be  deemed  to  do  nothing  in 
vain,  and,  therefore,  it  will  not  cast  the  descent  upon  one  who  can- 
not by  law  hold  the  estate."  ' 

The  doctrine  laid  down  by  the  Chief  Justice  is  maintained  by  all 
the  books  which  treat  of  the  subject.  Indeed  the  counsel  for  the 
tenant  does  not  deny  the  general  doctrine  of  the  common  law  touch- 
ing alienage,  but  courageously  contends  that  it  has  been  repealed  by 
our  own  statutes,  and  that  the  tenant  is  entitled  to  take  and  hold 
the  premises  demanded,  as  a  tenant  by  the  curtesy. 

He  contends  that  by  the  Revised  Stat.,  c.  60,  §  17,  the  tenant  is 
clearly  entitled.     *     *     * 


646      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

The  answer  is  very  apparent.  The  statutes  of  the  commonwealth 
touching  the  descent  of  real  estate,  were  intended  to  apply  to  citi- 
zens, and  not  to  aliens,  unless  they  were  particularly  named. 


(b.)  Forfeiture  for  alienation  of  fee. 

JACKSON  ex  dem.  McCREA  v.  MANCIUS. 

2  Wendell  (N.  Y.),  357.  —  1829. 
[Reported  herein  at  p.  612.] 


(c.)  Annulment  of  marriage.      Absolute  divorce. 

WHEELER  v.  HOTCHKISS. 
10  Connecticut,  225.  —  1S34. 

Daggett,  Ch.  J.  *  *  *  Has  the  plaintiff  a  title  to  the  land  on 
which  the  supposed  trespass  was  committed?  It  was  conveyed  to 
her,  in  1808,  while  she  was  the  lawful  wife  of  William  Wheeler,  by 
whom  she  had  issue,  born  alive,  before  and  since  the  conveyance. 
His  interest  in  this  land  by  virtue  of  the  coverture,  was  taken  by 
execution,  in  favor  of  one  Judah  Ransom,  who  entered  into  posses- 
sion and  occupied  until  the  15th  of  June,  1832;  when  he  sold  it  to 
the  defendant,  who  has  possessed  it  ever  since.  Subsequent  to  all 
these  events,  in  August,  1832,  she  obtained,  by  a  decree  of  the 
Superior  Court,  a  divorce  a  vinculo  matrimonii  from  her  husband, 
William  Wheeler.  What  is  the  operation  of  this  decree  of  divorce 
upon  the  rights  of  the  wife,  and  of  the  defendant,  who  holds  by  pur- 
chase from  the  execution  creditors? 

It  was  decided,  by  the  unanimous  opinion  of  this  court,  in  Starr 
v.  Pease  et  at.,  8  Conn.  Rep.  541,  that  the  right  of  the  husband  in 
the  land  of  his  wife,  being  an  estate  during  coverture,  is  terminated 
by  a  divorce  a  vinculo  matrimonii j  and  that  the  rights  of  creditors  to 
the  land  dependent  on  coverture,  were  thereby  affected  and  destroyed. 
On  further  reflection,  I  am  satisfied  with  that  decision.  It  must, 
then,  control  this  case,  unless  a  distinction  can  be  sustained.  The 
<  ounsel  for  the  plaintiff  insist  on  this  fact,  that  in  the  case  of  Starr 
v.  Pease  et  at.,  it  appeared,  that  Lewis,  the  husband,  had  no  issue  by 
the  wife;  and  in  this  case,  Wheeler,  the  husband,  had  issue,  born 
aliv,  before  and  after  she  became  seised  of  the  land;  and  hence, 
they  say,  that  he  was  tenant  by  the  curtesy  initiate.  It  has  its 
origin,  they  insist,  not    simply  in    the    marriage,  but    in   the   birth  of 


II.  3-]       FREEHOLDS  NOT  OF  INHERITANCE  —  LIFE  ESTATES.     647 

issue.  He  may  then  charge  the  estate;  make  a  feoffment;  hold 
against  the  heir  of  the  wife,  after  her  death;  against  the  remainder- 
men or  reversioner;  and  even  against  the  king,  in  the  case  of  attain- 
der. And  again,  his  estate  is  not  terminated,  by  abandoning  the 
wife  and  living  with  another  woman.  For  these  several  positions 
they  cite  Co.  Litt.  30;  2  Black.  Com.  127;  1  Rop.  on  H.  and  W.  15, 
45,  48;   1  Swift's  Dig.  84;  Sidney  v.  Sidney,  3   P.  Wins.  276,  7. 

Be  it  so,  that  by  these  authorities,  these  positions  are  sustained; 
still  all  the  authorities  concur,  that  until  the  death  of  the  wife,  he 
is  only  tenant  by  the  curtesy  initiate,  and  not  consummate.  The 
death  of  the  wife  is  one  of  the  four  essential  requisites  to  constitute 
a  tenancy  by  the  curtesy. 

Now,  the  wife,  Mary  Wheeler,  is  still  living,  and  the  foundation 
of  the  husband's  estate  is  removed,  by  the  dissolution  of  the  mar- 
riage. The  coverture  is  dissolved  by  the  wrong  act  of  the  husband. 
By  the  authority  of  adjudged  cases,  as  well  as  for  the  soundest 
reasons,  his  estate  could  continue  only  during  the  coverture. 
8  Conn.  Rep.  545.  I  am,  therefore,  satisfied,  that  the  right  of  the 
wife,  which  was  suspended  during  the  marriage,  is  restored  by  the 
divorce;  and  of  course,  the  title  to  the  land  is  now  vested  in 
her.     *     *     * 

Judgment  for  defendant.1 


(d.)    Wife's  conveyance. 

Vann,  J.,  in  ALBANY  CO.  SAVINGS  BANK  v.  McCARTY. 

149  New  York,  71  (85).  —  1896. 

It  is  difficult  to  see  how  McCarty's  signature  to  the  mortgage 
added  anything  to  its  effect,  as,  since  the  acts  allowing  married 
women  to  sell  and  devise  their  lands,  a  husband's  right  as  tenant 
by  the  curtesy  initiate,  as  to  lands  acquired  since  the  passage  of 
those  acts,  consists  simply  of  a  status, which  is  never  a  vested  right 
and  is  not  separately  alienable  during  coverture,  but  may  be  modi- 
fied or  annulled  at  any  time  before  it  becomes  consummate  by  the 
death  of  the  wife.  Thurber  v.  Townsend,  22  N.  Y.  517;  Staples  v. 
Brown,  95  Mass.  64;  Williams  M.Baker,  71  Pa.  St.  476;  1  Kerr  on 
Real  Property,  §§  780,  831;  Gerard's  Titles  to  Real  Estate,  4th  ed. 
79,  159.  While  merely  initiate  it  is  not  an  estate,  but  a  simple  pos- 
sibility or  expectancy  like  that  of  an  heir  apparent.  Either  may  be 
destroyed  at  will  by  the  owner  of  the  fee.     As  it  is  not  coupled  with 


1  Contra,  Gillespie  v.  IVorford,  2  Coldwell  (Term.),  632,  (1S65.) 


648      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

an  interest  in  the  property,  it  cannot  be  made  the  subject  of  a  mort- 
gage or  transfer.  "It  is  common  learning  in  the  law  that  a  man 
cannot  grant  or  charge  that  which  he  hath  not."  Perkins,  tit.  Grant, 
§65.  Like  "  the  next  cast  of  a  fisherman's  net, "  it  involves  a  possi- 
bility but  no  actual  or  potential  interest.  1  Thomas  on  Mortgages, 
§  136.  While  equity  may  enforce  a  contract  expressly  intended  by 
the  parties  to  apply  to  after-acquired  property,  that  principle  does 
not  apply  to  a  husband,  who  simply  unites  with  his  wife,  the  owner 
of  the  fee,  in  a  deed  or  mortgage.  We  think,  therefore,  that  Mr. 
McCarty  was  not  disqualified  as  a  witness  because  he  was  tenant  by 
the  curtesy.1 


(t\)  Disclait/ier. 

WATSON  v.  WATSON. 

13  Connecticut,  83.  —  1839. 
[Reported  herein  at  p.  626.] 

d.   Dower. 

(1.)  Nature  of  Dower. 

(a.)  Dower  inchoate. 

HINCHCLIFFE  v.  SHEA. 

103  New  York,  153.  —  1886. 

Action  against  Margaret  Shea  to  foreclose  a  mortgage  executed 
in  1878  by  Martin  Shea,  and  Margaret,  his  wife,  upon  lands  of  the 
husband.  Mrs.  Shea  had  no  interest  in  the  lands,  at  that  time,  other 
than  her  inchoate  right  of  dower.  In  1880  the  premises  were  sold 
under  an  execution  upon  a  judgment  recovered  in  1874  against 
Martin  Shea.  The  judgment  had  been  duly  docketed.  Martin 
died  in  1882,  and  shortly  thereafter  the  purchaser  conveyed  the 
premises  to  his  widow.  The  trial  court  and  the  General  Term  held 
the  dower  interest  of  the  widow,  subject  to  the  mortgage.  Defend- 
ant appeals. 

1  Where  the  wife  can  convey  lands  subject  to  the  curtesy,  but  not  free  from  it 
the  husband  by  joining  in  her  deed  would  bar  his  curtesy.  In  some  States 
curtesy  is  abolished,  in  some  it  is  made  analogous  to  dower,  in  some  the  hus- 
band lakes  an  absolute  interest  in  a  portion  of  his  wife's  lands  on  her  death.  1 
Stim.  Am.  Stat.   Law,  Art.  330. —  Ki>. 


II.  3-]  LIFE   ESTATES  :    DOWER.  649 

Andrews,  J.  —  The  joinder  by  a  married  woman  with  her  husband 
in  a  deed  or  mortgage  of  his  lands,  does  not  operate  as  to  her  by 
way  of  passing  an  estate,  but  inures  simply  as  a  release  to  the 
grantee  of  the  husband,  of  her  future  contingent  right  of  dower  in 
the  granted  or  mortgaged  premises,  in  aid  of  the  title  or  interest ; 
conveyed  by  his  deed  or  mortgage.  Her  release  attends  the  title 
derived  from  the  husband,  and  concludes  her  from  afterward  claim- 
ing dower  in  the  premises  as  against  the  grantee  or  mortgagee,  so 
long  as  there  remains  a  subsisting  title  or  interest,  created  by  his 
conveyance.  But  it  is  the  generally  recognized  doctrine  that  when 
the  husband's  deed  is  avoided,  or  ceases  to  operate,  as  when  it  is 
set  aside  at  the  instance  of  creditors,  or  is  defeated  by  a  sale  on 
execution  under  a  prior  judgment,  the  wife  is  restored  to  her  original 
situation,  and  may,  after  the  death  of  her  husband,  recover  dower 
as  though  she  had  never  joined  in  the  conveyance.  Robinson  v. 
Bates,  3  Mete.  40;  Malloney  v.  Horan,  49  N.  Y.  in  ;  Kitzmiller  v.  Van 
Rensselaer,  10  Ohio  St.  63;  Little  field  v .  Crocker,  30  Me.  192. 

In  short  the  law  regards  the  act  of  the  wife  in  joining  in  the  deed 
or  mortgage,  not  as  an  alienation  of  an  estate,  but  as  a  renunciation 
of  her  inchoate  right  of  dower  in  favor  of  the  grantee  or  mortgagee 
of  her  husband,  so  far  as  respects  the  title  or  interest  created  by  his 
conveyance.  It  follows,  therefore,  that  her  act  in  joining  in  the 
conveyance,  becomes  a  nullity  whenever  the  title  or  interest  to 
which  the  renunciation  is  incident,  is  itself  defeated.  Scribner  on 
Dower,  chap.  12,  §  49.  The  wife's  deed  or  mortgage  of  her  hus- 
band's lands  cannot  stand  independently  of  the  deed  of  her  husband 
when  not  executed  in  aid  thereof,  nor  can  she  by  joining  with  her 
husband  in  a  deed  of  lands  to  a  stranger,  in  which  she  has  a  con- 
tingent right  of  dower,  but  in  which  the  husband  has  no  present 
interest,  bar  her  contingent  right.  Marvin  v.  Smith,  46  N.  Y.  571. 
These  principles  are,  we  think,  decisive  of  this  case.  The  plaintiff's 
mortgage  has  been  defeated  by  the  paramount  title,  derived  under 
the  execution  sale.  It  was  the  husband's  mortgage  and  not  the 
mortgage  of  the  wife,  except  for  the  limited  and  special  purpose 
indicated.  The  lien  of  the  mortgage,  as  a  charge  on  the  lands  of 
the  husband,  has  by  the  execution  sale,  been  subverted  and  destroyed. 
Nor  can  the  security  be  converted  into  a  mortgage  of  the  widow's 
dower,  now  consummate  by  the  death  of  her  husband.  This  would 
be  a  perversion  of  its  original  purpose.  Her  act  in  signing  the  mort- 
gage became  a  nullity  on  the  extinguishment  of  the  lien  on  the  hus- 
band's lands.  If  on  the  execution  sale  there  had  been  a  surplus 
applicable  to  the  mortgage,   it  might  very  well   be  held  that  the 


650      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CII.  I. 

widow  could  not  be  endowed  therein,  except  after  the  mortgage  had 
been  satisfied. 

The  surplus  would  represent  in  part  the  mortgaged  premises.  See 
Elmendorf  v .  Lockwood,  57  N.  Y.  322. 

We  think  the  authorities  require  a  reversal  of  the  judgment.1 


(b.)  Dower  consummate,  —  before  "  assignment." 

PAYNE  v.   BECKER. 

87  New  York,  153.  —  1SS1. 

Action  by  a  receiver  in  proceedings  supplementary  to  execution 
to  procure  (among  other  things)  the  admeasurement  of  the  dower 
of  a  widow  (the  judgment  debtor)  in  lands  of  which  her  husband 
died  seised. 

Danforth,  J.  — The  appellant  now  argues  that  the  action  is  in 
the  nature  of  a  creditor's  suit.  If  we  yielded  to  this  view  it  would 
lead  to  a  dismissal  of  the  appeal,  for  in  such  an  action  the  judgment 
measures  the  matter  in  controversy.  It  is  less  than  $500,  and  the 
appeal  has  been  taken  as  of  right  and  not  by  allowance  of  the 
Supreme  Court.  Code,  §  191,  sub.  3.  It  is,  however,  clearly  a  case 
seeking  admeasurement  of  the  widow's  dower  and  partition  of  the 
lands  described;  thus  affecting  the  title  to  real  property  or  an 
interest  therein,  and,  therefore,  not  within  the  provisions  of  the  code 
referred  to.  The  court  below  held  that  plaintiff's  position  did  not 
enable  him  to  maintain  an  action  for  partition,  and  this  is  now  con- 
ceded by  the  appellant's  counsel.  One  other  ground  of  action 
remains,  and  we  are  of  opinion  that  the  complaint  does  contain  facts 
sufficient  for  the  admeasurement  of  the  dower  of  the  defendant.  The 
common  law  secured  to  the  widow  dower  for  her  sustenance  and  the 
sustenance  and   education  of  her   children.      Co.    Litt.  30  b.     But, 

1  See  also  Marvin  v.  Clark,  46  N.  Y.  571,  and  Wheeler  v.  h'irtland,  27 
N.  J.  Eq.  534,  reported,  infra,  p.  69S.  In  Moore  v.  City  of  New  York,  8 
N.  Y.  no,  it  is  held  that  a  fee  taken  by  right  of  eminent  domain  is  vested  in 
the  city  free  and  clear  of  the  inchoate  right  of  dower.  Gardiner,  J.,  says: 
"  Such  a  possibility  [an  inchoate  right  of  dower]  may  be  released,  but  it  is  not, 
it  is  believed,  the  subject  of  grant  or  assignment,  nor  is  it  in  any  sense  an  inter- 
est in  real  estate."  So,  in  Barbour  v.  Barbour,  46  Me.  9,  it  is  held  that  an 
inchoate  right  of  dower  is  subject  to  be  modified,  charged,  or  even  abolished  by 
legislative  enactment.  The  case  of  Moore  v.  Mew  York,  supra,  has  been  distin- 
guished and  limited  in  subsequent  New  York  cases.  See,  in  particular,  Simar 
v  <  '■ma  lav,  53  \\  Y.  298,  and  .1/.  /..  /.  Co,  v.  Shipman,  tig  N.  Y.  324,  but  an 
ini  hoate  right  of  dower  is  nowhere  held  to  be  an  estate  in  the  land.  —  Ed. 


II.  s]  LIFE    ESTATES:     DOWER.  65 1 

although  in  modern  times  the  right  has  been  enlarged,  and  is  con- 
firmed by  statute,  the  humane  object  of  its  allowance  may  be  defeated 
by  her  improvidence,  and  the  right  itself  subjected  to  the  claims  of 
creditors.  This  was  held  in  Tompkins  v.  Fonda,  4  Paige,  448,  where 
the  only  question  presented  was  whether  a  widow's  right  of  dower 
which  had  never  been  demanded  or  assigned  could  be  reached  by  the 
aid  of  a  court  of  equity  after  the  return  of  an  execution  unsatisfied. 

In  that  case  the  court  required  the  defendant  to  assign  to  the 
receiver,  for  the  purpose  of  the  suit,  her  right  of  dower  in  certain 
premises,  and  he  was  authorized  to  proceed  in  her  name  for  the 
recovery  and  assignment  of  it.  After  that,  the  receiver  was,  by  the 
terms  of  the  decree,  to  be  let  into  possession  of  the  lands  assigned, 
and  to  receive  the  rents  and  profits  until  the  further  order  of  the 
court.  This  case  was  carefully  considered  and  although  frequently 
cited,  Elmendorf  v '.  Lockwood,  57  N.  Y.  322;  Marvin  v.  Smith,  46  Id. 
574;  Stewart  x.  McMartin,  5  Barb.  438;  Moak  v.  Coates,  33  Id,  498; 
The  Chautauqua  County  Bank  v.  White,  6  Id.  596,  has  met  with  no 
disapproval.  In  Stewart  v.  McMartin,  supra,  a  similar  decree  was 
made,  and  while  it  was  denied  in  Moak  v.  Coates,  supra,  it  was  upon 
the  ground  that  no  assignment  of  the  widow's  interest  had  been  made 
to  the  receiver.  Whether  that  was  well  put,  needs  no  considera- 
tion, because  in  the  case  before  us  the  widow,  by  direction  of  the 
judge,  conveyed  her  right  to  the  plaintiff.  The  other  cases  sustained 
the  general  doctrine,  and  it  must  now  be  deemed  settled,  that,  upon 
the  death  of  her  husband,  a  widow  has  an  absolute  right  to  dower  in 
the  lands  of  which  he  had  been  seised,  and  that  this  right  or  interest, 
although  resting  in  action,  is  liable  in  equity  for  her  debts.  In 
the  cases  above  cited,  Tompkins  v.  Fonda,  and  Stewart  v.  McMartin, 
the  action  for  its  admeasurement  was  required  to  be  brought  in  the 
widow's  name,  but  since  the  code,  that  cannot  be  necessary.  The 
plaintiff  takes  as  the  assignee  of  a  chose  in  action,  Tompkins  v. 
Fonda,  ante,  and  must  sue  therefore  in  his  own  name,  §  in,  Old 
Code;  §  449,  New  Code.  This  was  so  held  in  Indiana  under  a  code 
of  practice  simdar  to  our  own,  Strong  v.  Clem,  12  Ind.  37;  Jackson 
v.  A  spell,  20  Johns.  410,  and  other  like  cases  cited  by  the  respondent 
show,  not  that  the  assignment  by  the  widow  of  her  right  of  dower 
is  inalienable,  but  only  that  it  could  not  be  so  aliened  as  to  enable 
the  grantee  to  bring  an  action  in  his  own  name. 

This  was  no  doubt  the  rule  at  common  law,  but  the  code  changed 
it.  In  Strong  v.  Clem,  supra,  the  court  held,  first  that  the  dower 
interest  accruing  to  the  widow  in  the  real  estate  of  her  deceased  hus- 
band was,  although  unmeasured,  assignable  as  a  right  in  action ;  and, 
second,  that  under  the  code  of  practice  in  that  State,  it  might  be 


652      ESTATES   AS   TO   QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

enforced  in  the  name  of  the  assignee.  Such  is  the  rule  in  equity,  as 
applied  to  all  rights  in  action,  2  Story's  Eq.  Jur.  §§  1040-1055;  and 
that  a  claim  for  dower  is  within  that  rule  is  shown  by  the  case  of 
Potter  v.  Everitt,  7  Ir.  Eq.  Cas.  152.  The  action  was  by  the  pur- 
chaser of  a  widow's  right  of  dower  before  assignment,  against  the 
widow  and  the  deceased  husband's  heirs-at-law,  to  compel  them  to 
allot  the  dower  and  afterwards  convey  the  land  so  allotted.  The 
plaintiff  obtained  the  relief  sought.  Both  upon  principle  and 
authority,  therefore,  we  must  hold  that  the  widow's  right  or  claim  of 
dower  is  property;  that,  like  every  other  species  of  property  it  may 
be  reached  and  applied  to  the  payment  of  her  debts;  and  this 
principle  once  established,  the  power  of  the  Supreme  Court  to  carry 
it  into  effect  cannot  be  doubted.  Whatever  interest  or  right  the 
defendant  had,  accrued  prior  to  the  recovery  of  judgment,  and  she 
was  at  that  time,  and  at  the  time  of  the  appointment  of  the  plaintiff 
as  receiver,  entitled  to  have  dower  assigned  to  her.  The  plaintiff 
not  only  complied  with  the  conditions  made  necessary  by  statute, 
New  Code,  §  2468,  before  the  property  of  the  judgment  debtor 
should  vest  in  him;  but  he  took,  by  order  of  the  judge,  an  assign- 
ment of  it  from  the  plaintiff.  Thus,  by  compliance  with  statutory 
provisions  and  by  the  act  of  the  defendant  in  pursuance  of  a  judicial 
mandate,  he  became  entitled  to  all  her  property,  whether  real  estate 
or  rights  in  action.  But  this  avails  nothing  unless  he  can  make  his 
title  effectual  and  reduce  the  property  to  possession  for  the  purpose 
of  his  appointment.  Upon  the  facts  stated  in  the  complaint,  and 
conceded  to  be  true,  we  think  he  is  entitled  to  reach  that  now  in 
question,  and  for  that  purpose  may  have  the  dower  admeasured  and 
applied  according  to  the  prayer  of  the  complaint.. 

The  order  ami  judgment  appealed  from  should,  therefore,  be 
reversed  with  costs,  the  demurrer  overruled,  and  leave  given  to  the 
defendant  to  answer,  upon  payment  of  costs,  within  twenty  days 
after  notice  of  the  order  to  be  entered  upon  the  remittitur  herein. 

Judgment  reversed.1 


'See  Mut.  Life  Ins.  Co.  v.  Shipman,  119  N.  Y.  324,  in  which  Ruger,  Ch.  J., 
says:  "Although  this  right  [that  of  a  widow  to  her  dower],  while  unassigned, 
did  not  giv-e  her  a  legal  estate  in  the  lands,  it  is  now  well  settled  that  it  was  a 
legal  interest  and  constituted  property  which  was  capable  in  equity  of  being 
sold,  transferred  and  mortgaged  by  the  dowress,  and  liable  to  be  reached  by 
creditors  in  payment  of  her  debts."  —  Ed. 


II.  3-]  LIFE   ESTATES:     DOWER.  653 

(c.)  Dowei-  consummate,  — after  "  assignment." 

LAWRENCE  v.  MILLER. 

2  New  York,  245.  —  1S49. 

Action  for  rent.  Defendant  had  been  a  tenant  of  plaintiff's  hus- 
band, and  the  premises  having  been  set  off  to  plaintiff  as  her  dower 
he  had  attorned  to  her.  Later  the  husband's  administrator,  under 
an  order  from  the  surrogate,  had  sold  these  premises  for  decedent's 
debts,  including  plaintiff's  interest  therein.  The  purchaser  leased 
them  to  defendant,  who  now  refuses  to  pay  rent  to  plaintiff.  Judg- 
ment for  defendant.     Plaintiff  appeals. 

Gardiner,  J.  —  At  the  time  of  the  proceedings  before  the  surro- 
gate, the  plaintiff  had  a  vested  legal  estate  in  the  premises  assigned 
to  her,  under  the  decree  in  chancery,  absolute  for  her  life  unless  her 
right  and  title  was  subject  to  and  qualified  by  the  31st  section  of  the 
act  2  R.  S.  99.  Com.  Dig.  tit.  Dower,  ch.  4,  §  1 ;  1  R.  S.  740,  §  16; 
4  Kent's  Com.  69.  This  section  provides  that  the  conveyances  exe- 
cuted to  purchasers  upon  a  sale  by  order  of  the  surrogate,  "  shall  be 
deemed  to  convey  all  the  estate,  right  and  interest  in  the  premises 
of  the  testator  or  intestate  at  the  time  of  his  death,  free  and  dis- 
charged from  all  claim  for  dower  of  the  widow  of  said  testator  or 
intestate." 

Before  assignment  the  widow  has  no  estate  in  the  lands  of  her 
husband;  her  right  is  a  mere  chose  in  action  which  cannot  be  sold 
upon  execution  at  law.  Until  that  time  it  is  strictly  a  claim. 
Greenleaf's  Cruise,  vol.  I.,  tit.  Dower,  ch.  3,  and  note.  The 
ordinary  signification  of  claim,  is  that  of  a  right  or  title,  actual  or 
supposed,  to  a  debt,  privilege  or  other  thing  in  the  possession  of 
another.  Most  persons  distinguish  readily  enough  between  a  claim 
for  dower  and  the  estate  itself  in  the  actual  possession  of  the  person 
entitled  thereto.  No  one  thinks  of  confounding  a  claim  for  posses- 
sion, with  possession  in  fact.  Writers  speak  of  possession,  of  the 
right  of  possession,  and  the  mere  right.  Each  has  its  distinct  and 
appropriate  meaning;  they  may  exist  in  different  individuals, 
although  their  union  in  the  same  person  is  necessary  to  a  perfect 
title.  A  claim  is  the  means  by  or  through  which  the  claimant 
obtains  the  possession  or  enjoyment  of  the  thing  sought.  It  is  the 
means  to  an  end,  and  not  the  end  itself.  It  is  true,  that  the  word 
may  sometimes  stand  for  the  subject  claimed.  And  so  may  cause  for 
effect.  The  distinction  between  the  two  is  somewhat  important, 
notwithstanding. 


C54      ESTATES    AS    TO  QUANTITY    AND    QUALITY.       [PT.  IV.  (II.  I. 

It  may  be  granted  that  if  Mrs.  Lawrence,  after  assignment,  had 
conveyed  all  her  claim  for  dower  to  the  premises  in  her  possession, 
she  would  have  transferred  all  her  interest  to  the  purchaser.  And 
the  same  might  be  said  of  a  person  who  owned  his  farm  in  fee  simple. 
But  in  those  cases,  courts  would  seek  for  the  intent  of  the  parties 
in  their  situation  and  the  state  of  the  property,  and  modify  the 
primary  and  popular  signification  of  the  term  used  by  them,  so  as  to 
give  effect  to  the  conveyance.  Neither  the  parties  nor  their  legal 
advisers  would,  I  apprehend,  speak  of  selling  a  claim,  when  they 
intended  to  dispose  of  a  freehold  estate  in  possession.  The  Legisla- 
ture must  be  presumed  to  have  used  the  word  in  question,  in  its 
ordinary  and  popular  sense,  unless  there  is  something  in  the  subject 
to  which  it  is  applied,  or  in  other  provisions  of  the  act  to  indicate  a 
different  design.  And  first  as  to  the  subject.  Dower  is  perhaps,  of 
all  others,  the  estate  most  favored  in  law  and  equity.  3  Brown's  Ch. 
264.  It  is  distinctly  recognized  and  protected  in  our  statute,  and  a 
presumption  of  a  change  in  the  law  to  the  prejudice  of  the  widow 
is  not  to  be  indulged.  Again,  by  the  common  law,  although  the 
title  of  the  widow  is  consummate  upon  the  death  of  the  husband,  she 
is  not  seised,  but  the  heir;  and  she  consequently  claims  through  his 
seisin.  Cruise's  Dig.  tit.  Dower,  ch.  3,  §  1.  But  by  assignment  of 
dower,  the  seisin  of  the  heir  is  defeated  ab  initio  (Id.  ch.  3,  §  24) 
and  the  dowress  is  in  of  the  seisin  of  her  husband,  as  of  the  time 
when  that  seisin  was  first  acquired.  It  is  upon  this  principle  that  the 
widow  can  elect  under  which  seisin  she  will  hold,  where  lands  have 
been  sold  after  marriage  and  repurchased  by  the  husband.  Co. 
Litt.  588,  ^^,  a.,  and  note.  For  the  same  reason,  she  holds  the 
lands  discharged  of  all  incumbrances  created  subsequent  to  the  mar- 
riage, if  the  husband  was  then  seised,  because  in  the  language  of 
Cruise,  "  her  title  has  relation  to  the  time  of  the  marriage,  and  to 
the  seisin  which  her  husband  then  had."  Cruise's  Dig.  tit.  Dower, 
tit.  6,  ch.  2,  §  34.  Her  estate  is  a  continuation  of  the  husband's, 
commencing  at  the  time  of  the  purchase,  if  the  lands  were  acquired 
after  marriage.     Id.  tit.  6,  ch.  2,  §  17;  Co.  Litt.  supra. 

By  the  31st  section  above  quoted,  the  surrogate's  deed  conveyed 
all  the  estate,  right  and  interest  of  the  husband  at  the  time  of  his 
death.  That  interest  was  in  fee  a  possession,  subject  to  all  incum- 
brances, the  widow's  claim  for  dower  included.  This  estate 
descended  to  the  heir,  and  he  also  could  transfer  a  fee  in  possession 
before  assignment  to  a  purchaser.  The  object  of  the  statute  was  to 
extinguish  the  claim  for  dower,  while  the  heir  was  seised  of  the  same 
estate,  both  in  quantity  and  quality,  that  was  in  the  ancestor  at  the 
time  <>f  his  death.      It  gives  to  the  purchaser,  under  the  surrogate's 


II.   3-]  LIFE    ESTATES:     DOWER.  655 

order,  just  what  the  intestate  had  at  his  death  and  no  more,  with 
the  exception  of  the  discharge  of  dower. 

But  by  the  assignment  of  dower,  the  widow  took  a  freehold  estate, 
the  right  to  which  accrued  in  1825,  when  the  land  in  question  was 
purchased  by  her  husband,  and  her  title  by  relation  commenced  at 
that  time.  Viner's  Abr.  tit.  Relation;  3  Cowen's  R.  75;  Cruise's 
Dower,  tit.  6,  ch.  2,  §  34.  It  displaced  the  seisin  of  the  heir,  and 
that  of  the  husband  which  was  in  him  at  the  time  of  his  death,  and 
from  that  period,  turned  the  estate  of  the  former  into  a  reversion, 
expectant  upon  the  determination  of  her  estate.  When  proceedings 
for  the  sale  were  commenced  before  the  surrogate,  there  were  two 
estates,  one  for  life,  and  a  reversion  expectant  upon  its  determina- 
tion. They  originated  at  different  times,  and  under  a  different  seisin ; 
that  of  the  heir  at  the  death  of  the  intestate,  that  of  the  widow 
when  the  land  was  acquired.  Together  they  would  not  make  the 
same  estate  of  which  the  husband  died  seised.  That  was  subject  to 
the  claims  of  his  creditors,  and  to  a  general  claim  for  dower  extend- 
ing to  all  the  lands  of  which  he  was  seised  during  the  marriage. 
After  assignment,  the  estate  of  the  widow  overreached  the  former 
and  extinguished  the  latter.  The  difference  in  interest  is  still  more 
striking  in  those  cases  where  the  estate  is  largely  encumbered.  The 
widow's  estate  might  be  valuable,  while  the  whole  fee  of  which  the 
ancestor  and  the  heir  were  seised,  might  not  be  worth  the  expense 
of  a  sale. 

According  to  the  views  of  the  defendant,  the  31st  section  annuls 
the  estate  of  the  widow  which  she  held  as  purchaser  under  a  title 
reaching  back  to  1825,  in  favor  of  debts  subsequently  contracted, 
and  revives  her  general  claim  against  all  the  lands  of  the  testator, 
which  the  statute  of  dower  declares  shall  be  forever  barred  by  the 
assignment.  1  R.  S.  742,  §  23.  This  claim,  extending  to  all  the 
lands  of  the  intestate,  was  the  evil  which  the  Legislature  intended  to 
suppress,  because  it  would  probably  always  depreciate  the  value  of 
the  whole  real  estate  beyond  the  value  of  the  widow's  interest. 
This  would  occasion  loss  to  the  estate  and  to  creditors  without  a 
corresponding  benefit  to  any  one.  The  31st  section,  therefore,  very 
properly  afforded  a  remedy  by  substituting  a  pecuniary  recompense 
for  a  claim  thus  indefinite.  But  when  dower  is  assigned,  the  reason 
for  the  provisions  cease.  The  purchaser  knows  what  he  is  buying, 
and  the  law  in  directing  compensation,  assumes  that  the  value  of 
the  widow's  claim  can  be  accurately  calculated. 

Again,  by  section  5,  the  order  to  show  cause  must  be  directed  to 
all  persons  interested  in  the  estate.  Prior  to  the  assignment,  the 
widow's  claim  is  upon  all  the  real  estate  of  the  intestate;  she  is  then 


656      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

interested  in  the  estate,  and  entitled  to  the  notice  provided  by  the 

6th  and  7th  sections.     After  assignment  her  interest  ceases,  and  she 

is  then  remitted  to  her  dower  which  she  holds  by  title  paramount  to 

the  heirs  and  the  creditors  of  her  husband.      By  the  10th  section,  the 

heir  or  devisee  of  the  decedent,  or  any  person  claiming  under  them, 

may  contest  the  facts  alleged  by  the  executor  or  administrator,  etc. 

The  widow,  before  assignment,  claims  under  and  through  the  seisin 

of  the  heir,  and  may  litigate;  after  assignment,  she  is  in  of  the  estate 

and  seisin  of  the  husband,  and  cannot.     If  she   is  not  entitled  to 

notice,  nor  the  right  to  litigate,  she  cannot  be  bound  by  the  decree 

cf  the  surrogate.     Without  adverting  to  other  parts  of  the  act,  it  ts 

sufficient  to  say,  that  they  do  not  conflict  with  the  construction  given 

to  the  31st  section. 

I  think  the  authority  of  the  surrogate  to  direct  a  sale,  "  free  from 

all  claim  of  dower,"  must  be  limited  to  cases  where  the  heir  upon 

whom  the  law  casts  the  estate  of  the  intestate  could  convey  a  fee  in 

possession.     In  other  words,  it  must  be  exercised,  if  at  all,  before 

the  assignment  of  dower.     Upon  this  construction,  full  effect  can  be 

given  to  the  whole  section;  no  estate  is  displaced;  the  tenants  of 

the  dowress  are  protected;  she  may  bequeath  the  crops  on  the  land 

holden   by   her.      1    R.    S.   744,    §   25.     The  provisions   of    this    act 

harmonize  with  those  of  the  statute  concerning  dower,  and  the  only 

change   is,  that  a  claim,   a  chose   in  action,  is   made  the  subject  of 

pecuniary  compensation  out  of  the  proceeds  of  the  land  to  which  it 

relates. 

The  judgment  should  be  reversed. 


(2.)  Essentials  for  Dower. 
(ti.)  Lawful  ?narriage. 

Bennett,  J.,  in  JONES  v.  JONES. 

28  Arkansas,  19.  —  1872. 

Was  Delilah  Jones  the  widow  of  Elbert  Jones?  This  inquiry  is  an 
important  one,  as  she  is  asking  the  court  to  award  her  dower,  and 
marriage  is  an  essential  prerequisite  to  the  right  of  dower.  In  order 
to  entitle  a  woman  to  this  provision,  she  must  answer  the  descrip- 
tion of  a  lawful  wife.  1  Scribner  on  Dower,  ch.  3,  sec.  1.  Marriage, 
under  our  statute,  is  considered  in  law  a  civil  contract,  to  which  the 
(  "iisent  of  the  parties,  capable  in  law  of  contracting,  is  necessary. 
Marriage  has  been  regulated  by  legislative  enactments,  by  defining 
the  character  and  relations  of  parties  who  may  marry,  so  as  to  pre- 


II.  3-]  LIFE   ESTATES:     DOWER.  657 

vent  a  conflict  of  duties  and  to  preserve  the  purity  of  families;  by 
prescribing  the  solemnities  by  which  the  contract  shall  be  executed, 
so  as  to  guard  against  fraud,  surprise  and  seduction;  by  annexing 
civil  rights  to  the  parties  and  their  issue,  to  encourage  marriage  and 
to  discountenance  wanton  and  lascivious  cohabitation;  by  declaring 
the  causes  and  the  judicature  for  rescinding  the  contract,  when  the 
conduct  of  either  party  and  the  interest  of  the  State  authorize  disso- 
lution. A  lawful  marriage  may  be  defined  to  be  a  contract  made  by 
parties  authorized  by  law  to  contract,  and  solemnized  in  the  manner 
prescribed  by  law.  To  constitute  a  lawful  wife,  there  must  have 
been  a  lawful  marriage.  It  is  generally  considered  in  the  absence 
of  any  positive  statute  declaring  that  all  marriages,  not  celebrated 
in  the  prescribed  manner,  shall  be  absolutely  void,  or  that  none  but 
certain  magistrates  or  ministers  shall  solemnize  a  marriage,  any 
marriage  regularly  made  according  to  the  common  law,  without 
observing  the  statute  regulation,  would  still  be  a  valid  marriage. 
2  Greenleaf,  Ev.  417;  2  Kent.  Com.  90,  91;  Reeve's  Dom.  Rel.  196, 
200,  290;  Partem  v.  Harvey,  1  Gray,  119;  Londonderry  v.  Chester,  2 
N.  H.  268;  Chiseldine  v.  Brewer,  1  Har.  &  McH.  152;  Hantz  v. 
Sealey,  6  Binn.  405. 

A  marriage  celebrated  in  any  country,  according  to  its  own  laws, 
is  recognized  and  valid  in  any  country  whose  laws  or  policy  it  may 
not  contravene. 

The  proof  of  marriage,  as  of  other  issues,  is  either  by  direct  evi- 
dence establishing  the  fact,  or  by  evidence  of  collateral  facts  and  cir- 
cumstances from  which  its  existence  may  be  inferred. 


SMITH  v.  SMITH. 

5  Ohio  State,  32.  —  1855. 


Petition  for  dower.  Ruth  Atherton  married  one  Dennis  in  1817 
or  1818.  They  soon  thereafter  separated  and  each  remarried,  — 
Ruth  marrying  one  David  Smith.  Smith,  during  the  coverture,  was 
seised  of  certain  lands  which  he  conveyed  to  the  defendant,  Chester 
Smith,  Ruth  not  joining  in  the  conveyance.  David  is  now  dead  and 
Ruth  asks  to  have  dower  set  off  to  her.     Case  reserved. 

Swan,  J.  — It  seems  to  be  conceded  by  the  counsel  for  the  com- 
plainant, Ruth  Smith,  that  if  her  marriage  to  Smith  was  absolutely 
void,  she  is  not  entitled  to  dower  in  his  estate.  Such  is  undoubtedly 
the  law;  and  it  is  equally  well  settled,  that  a  second  marriage,  as  in 
this   case,   while   the  first  husband   was  living,   is  absolutely  void, 

LAW  OF  PROP.   IN  LAND — 42 


658      ESTATES   AS   TO   QUANTITY   AND    QUALITY.      [PT.  IV.   CII.  I 

unless  the  legislation  of  this  State  has  rendered  such  second  mar- 
riage voidable  only. 

It  is  said  that  the  statute  which  authorizes  proceedings  to  obtain 
a  divorce,  "  where  either  of  the  parties  had  a  former  husband  or 
wife  living  at  the  time  of  solemnizing  the  second  marriage,  Swan's 
Stat.  325,  §  1,  does,  constructively,  render  such  second  marriage 
voidable  only.  The  fact  of  a  prior  marriage  may  be  one  of  doubt; 
and  hence  this  provision  permits  parties  to  have  the  subject  judicially 
investigated  and  determined.  Another  object  of  this  provision  was, 
probably,  to  give  alimony  to  the  second  wife  of  a  man  who  had  a 
former  wife  living.  Besides,  to  render  such  second  marriage  valid, 
or  voidable  only,  until  decree  of  divorce,  would  require  distinct  and 
positive  legislation. 

No  presumptive  proof  of  divorce  between  Dennis  and  his  wife 

exists.     Indeed,  a  divorce  being  a  judicial  proceeding  of  record,  we 

do  not  see  how  such  a  presumption  could  arise  without  some  proof, 

There  is  none. 

The  petition  must  be  dismissed. 


(3.)   Seisin  of  husbatid  during  coverture. 

DURANDO  v.   DURANDO. 

23  New  York,  331.  —  1861. 

Testator  devised  his  lands  to  his  widow  for  life,  remainder  to 
his  children  of  whom  petitioner's  husband  was  one.  During  the 
continuance  of  the  life  estate  part  of  the  lands  were  taken  under 
the  exercise  of  the  right  of  eminent  domain  and  the  moneys  received 
therefor  were  paid  into  court.  Petitioner's  husband  died  in  1853, 
the  life  tenant  in  i860.  Petitioner  asks  a  share  of  the  money  in 
court.     Petition  denied  and  the  appeal. 

Selden,  J. — To  entitle  a  widow  to  dower,  the  husband  must 
have  been  seised,  either  in  fact  or  in  law,  of  an  estate  of  inheritance 
in  the  land  at  some  time  during  the  coverture.  This  rule  is  inflexi- 
ble. When,  therefore,  the  husband  had,  previous  to  his  death, 
simply  a  reversion  in  fee,  or  a  vested  remainder  expectant  upon  an 
estate  for  life,  his  widow  cannot  be  endowed.  As  in  such  a  case  the 
husband  has  never  had  either  possession  or  any  present  right  of  posses- 
sion, he  cannot  be  said  to  have  had  a  seisin  of  any  sort,  either  actual 
or  legal.  It  is  conceded  by  the  counsel  for  the  appellant,  that  this  rule 
applies  where  lands  descend  to  the  husband,  subject  to  the  right  of 
dower  of  the  widow  of  the  ancestor;  as  if  a  father  die  intestate,  leav- 


II.   3-]  LIFE   ESTATES:     DOWER.  659 

ing  a  widow  and  a  son,  and  the  widow  is  endowed,  it  is  not  claimed 
that  the  widow  of  the  son,  in  case  of  his  death,  in  the  lifetime  of  his 
father's  widow,  could  ever  be  endowed  of  the  lands  which  had  been 
assigned  for  the  dower  of  the  latter.  But  it  is  insisted,  that  where 
the  estate  comes  to  the  husband,  not  by  inheritance  but  by  purchase, 
the  widow  may  be  endowed,  notwithstanding  her  husband  has  had 
only  a  remainder  in  the  land. 

The  distinction,  or  rather  the  idea,  that  it  applies  to  this  case,  is 
evidently  founded  upon  a  misapprehension.  It  is  true,  that  where 
a  father  conveys  lands  to  a  son,  subject  to  the  contingent  right  of 
the  wife  of  the  father  to  dower,  if  the  father  dies,  and  his  widow  is 
endowed,  and  before  her  death  the  son  dies  leaving  a  widow,  the 
latter,  if  she  survive  the  widow  of  the  father,  is  entitled  to  dower  in 
the  lands  of  which  such  widow  had  previously  been  endowed.  But 
the  reason  is,  not  because  there  is  any  distinction  between  a  vested 
remainder,  which  comes  by  descent,  and  one  created  by  deed,  but 
because  in  the  case  supposed,  the  son  becomes  actually  seised  of  the 
estate  in  the  lifetime  of  the  father;  and  this  seisin  is  sufficient  to 
entitle  his  widow  to  dower,  although  his  estate  is  contingent,  and 
is  defeated  by  the  death  of  the  father  leaving  a  widow. 

I  can  discover  no  other  foundation  for  the  position  assumed  by 
the  appellant's  counsel,  than  the  inapt  use  by  Coke  of  a  single  word 
in  a  passage  which  I  will  quote.  In  speaking  on  this  subject  he 
says:  "  For  example,  if  there  be  grandfather,  father  and  son,  and 
the  grandfather  is  seised  of  three  acres  of  land  in  fee,  and  taketh 
wife  and  dieth,  this  land  descendeth  to  the  father  who  dieth  either 
before  or  after  entry,  now  is  the  wife  of  the  father  dowable.  The 
father  dieth,  and  the  wife  of  the  grandfather  is  endowed  of  one  acre 
and  dieth,  the  wife  of  the  father  shall  be  endowed  only  of  the  two 
acres  residue,  for  the  dower  of  the  grandmother  is  paramount  the 
title  of  the  wife  of  the  father,  and  the  seisin  of  the  father  which 
descended  to  him  (be  it  in  law  or  actual)  is  defeated;  and  now  upon 
the  matter  the  father  had  but  a  reversion,  expectant  upon  a  freehold, 
and,  in  that  case,  dos  de  dote peti  non  debet;  although  the  wife  of  the 
grandfather  dieth,  leaving  the  father's  wife.  And  here  note  a 
diversity  between  a  descent  and  a  purchase.  For  in  the  case  afore- 
said, if  the  grandfather  had  enfeoffed  the  father,  or  made  a  gift  in 
tail  unto  him,  then  in  the  case  above  said,  the  wife  of  the  father, 
after  the  decease  of  the  grandfather's  wife,  should  have  endowed  of 
that  part  assigned  to  the  grandmother;  and  the  reason  of  this 
diversity  is,  for  that  the  seisin  that  descended  after  the  decease  of 
the  grandfather  to  the  father  is  avoided  by  the  endowment  of  the 
grandmother,    whose    title   was   consummate   by  the   death   of  the 


660      ESTATES   AS   TO   QUANTITY    AND    QUALITY.      [PT.  IV.   CII.  I. 

grandfather;  but  in  the  case  of  the  purchase  or  gift,  that  took  effect 
in  the  life  of  the  grandfather  (before  the  title  of  dower  of  the  grand- 
mother was  consummate),  is  not  defeated,  but  only  quoad  the  grand- 
mother, and  in  that  case  there  shall  be  dos  de  dote."  Coke,  Litt. 
31  a,  b. 

The  word  purchase,  which  occurs  in  this  paragraph, when  used  in 
contradistinction  to  descent,  includes  the  obtaining  of  title  by  devise 
as  well  as  by  deed.  But  the  whole  reasoning  of  the  passage  quoted 
shows  that  the  effect  attributed  to  a  purchase  follows  only  when  the 
land  is  conveyed  by  deed.  The  sole  reason  given  for  the  distinction 
is,  that  a  purchase  takes  effect  in  the  lifetime  of  the  vendor,  and  the 
purchaser  becomes  at  once  seised  of  a  defeasible  estate;  while  in 
case  of  a  descent,  the  heir  is  never  seised  of  the  lands  assigned  for 
dower  during  the  life  of  the  widow,  as  her  title  relates  back  in  all 
cases  to  the  death  of  the  husband.  Now,  in  this  respect,  there  is 
not  the  slightest  difference  between  a  descent  subject  to  dower,  and 
a  devise  subject  either  to  dower  or  any  other  life-estate.  In  either 
case  the  freehold  passes  directly  to  the  tenant  of  the  life  estate,  upon 
the  death  of  the  ancestor  or  devisor,  and  neither  the  heir  nor  the 
devisee  of  the  remainder  can  have  any  seisin  until  the  death  of  such 
tenant. 

The  distinction  is  stated  in  terms  perfectly  accurate  and  precise 
by  the  Chancellor  in  the  case  of  Dunham  v.  Osbom,  7  Paige,  634;  but 
in  the  subsequent  case  of  Cregier,  1  Barb.  Ch.  598,  he  uses  the  word 
purchase  as  it  is  used  by  Lord  Cok*e,  and  states  the  distinction  as 
being  between  estates  which  came  to  the  husband  by  descent,  and 
those  which  came  by  purchase,  subject  to  dower.  This  inaccuracy 
in  the  use  of  the  word  purchase,  by  both  Lord  Coke  and  Chancellor 
Walworth,  is  perfectly  palpable;  but  as  it  has  led  to  the  bringing  of 
so  clear  a  case  as  the  present  to  this  court,  it  may  be  well  to  advert 
to  and  explain  it.  That  it  is  this  which  has  misled  the  counsel  for 
the  appellant  is  obvious,  as  he  commences  his  citations  in  support 
of  his  doctrine  with  the  Year  Book  (5  Edw.  III.,  title  Voucher,  249), 
which  appears  to  be  the  very  authority  upon  which  Lord  Coke  based 
his  distinction.  None  of  the  other  authorities  cited  by  the  counsel 
have  any  tendency  to  support  his  position,  and  it  is  very  clear  that 
it  is  untenable.  The  precise  question  was  decided  by  the  Supreme 
Court  of  Massachusetts  in  the  case  of  Eldridge  v.  Forrestal,  7  Mass. 
253,  and  in  Beekman  v.  Hudson,  20  Wend.  53,  it  was  assumed  as  per- 
fectly clear,  that  in  such  a  case  the  widow  was  not  entitled  to  dower. 

There  can  be  no  pretense  that  the  widow  is  entitled  to  the  fund  in 
question  as  personal  estate,  under  the  statute  of  distributions.  The 
money  is  the  product  of  the  land  taken,  and  must  belong  to  the  per- 


II    3-J  LIFE    ESTATES  :    DOWER.  66l 

sons  entitled  to  the  land  which  it  represents,  and  out  of  which  it 
arose.  Besides,  the  title  had  already  vested  in  the  heirs  when  the 
proceedings  for  extending  the  street  were  commenced,  and  if  the 
widow  had  then  no  right  to  dower  in  the  premises,  she  of  course 
can  have  no  right  to  the  money  even  if  it  is  to  be  considered  as 
personal  estate. 

The  judgment  of  the  Supreme  Court  must  be  affirmed. 


PHELPS  v.  PHELPS. 
143  New  York,  197. —  1894. 


Gray,  J. — This  is  an  action,  in  equity,  brought  by  a  wife  to 
establish  and  protect  an  inchoate  right  of  dower  in  certain  lands 
now  held  by,  and  in  the  name  of,  a  third  person;  but  which  were 
paid  for  by  the  plaintiff's  husband,  and,  also,  to  establish  her  dower 
right  in  the  proceeds  of  the  sale  of  certain  other  lands  similarly  pur- 
chased and  held.  Her  complaint  having  been  demurred  to  for  insuffi- 
ciency to  state  a  cause  of  action,  we  must  assume  all  its  averments 
of  material  facts  to  be  true.  After  alleging  a  marriage  and  the  birth 
of  children,  she  sets  forth  a  separation  between  herself  and  her  hus- 
band, caused  by  his  neglect,  wrong  conduct  and  desertion.  She 
alleges  that  since  his  desertion  of  her,  with  the  intent  and  purpose 
of  defrauding  her  of  her  dower  rights  in  his  real  estate,  her  husband 
had  purchased  various  pieces  of  land,  and  caused  the  title  to  be 
taken  in  the  name  of  one  Lewis,  as  a  dummy  in  the  transaction, 
under  an  agreement  and  arrangement  with  the  said  Lewis  that  the 
said  defendant  (meaning  her  husband),  "  should  receive  all  the 
benefit  of  and  have  full  control  over  said  property,  which  agreement 
was  in  writing." 

She  alleges  that  her  husband  "  retained  and  exercises  full  pos- 
session and  control  over  the  same,"  and  that  when  he  desired  to 
dispose  of  any  of  the  property,  he  would  "  under  the  agreement  and 
arrangement  with  said  Lewis  present  the  deeds  and  papers  to  him, 
which  said  Lewis,  under  his  agreement,  was  bound  to  execute;  " 
that  all  of  the  property,  with  the  exception  of  one  piece,  was  thus 
disposed  of  by  her  husband  "  to  bona  fide  purchasers,  without  notice 
of  the  dower  interest  of  this  plaintiff,"  and  that  her  husband 
"  received  the  full  amount  of  the  purchase  money  paid  for  the  same, 
for  his  own  use  and  benefit."  She  then  proceeds  to  describe  the 
piece  remaining  unsold,  which  she  alleges  to  have  been  conveyed  by 
Lewis,  at  the  request  of  her  husband,  without  consideration,  to  the 
defendant  Goodwin,  a  partner  of  her  husband,  "  who  was  to  hold 


662      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.   I. 

the  same  under  the  same  agreement  that  said  Lewis  had  with  her 
husband,"  and  as  to  this  property  the  plaintiff  charges  her  husband 
to  be  the  real  owner.  She  prays  for  a  decree,  which  will  adjudge, 
because  of  these  transactions  and  their  fraudulent  purpose,  that  the 
proceeds  received  by  her  husband  upon  the  sale  of  any  of  this  prop- 
erty "  are  still  real  property  and  that  this  plaintiff  has  an  inchoate 
right  of  dower  in  the  same;  "  that  her  husband  be  ordered  to  pay 
one-third  of  these  proceeds  into  court,  there  to  be  held  and  invested, 
etc.,  etc.,  and  that  as  to  the  land  held  by  Goodwin,  it  be  adjudged 
to  be  subject  to  her  inchoate  right  of  dower,  etc.,  etc. 

With  this  as  a  sufficient  summary  of  the  material  facts  of  her  com- 
plaint, we  are  confronted  with  the  pretended  cause  of  action,  for 
which  I  am  unable  to  find  any  sufficient  basis  in  our  Revised  Statutes; 
to  which  we  must  look  for  the  authority  for  the  claim  of  a  wife  to 
be  entitled  to  dower  in  lands.  To  entitle  the  wife  to  dower  the 
husband  must  be  seised,  either  in  fact  or  in  law,  of  a  present  free- 
hold in  the  premises,  as  well  as  of  an  estate  of  inheritance.  That 
proposition  follows  from  the  language  of  the  section  in  the  Revised 
Statutes,  that  "  a  widow  shall  be  endowed  of  the  third  part  of  all 
the  lands,  whereof  her  husband  was  seised  of  an  estate  of  inheritance 
at  any  time  during  marriage." 

How  can  seisin  be  predicated  of  the  plaintiff's  husband  with 
respect  to  the  lands  purchased  through  the  use  of  his  moneys,  but 
never  conveyed,  nor  agreed  to  be  conveyed,  to  him?  The  plaintiff, 
certainly,  had  no  control  over  the  use  which  her  husband  chose  to 
make  of  his  personal  estate.  That  was  his  absolutely  and  she  had 
no  interest  in  it  which  she  could  assert;  beyond  a  claim  upon  him 
for  the  support  of  herself  and  their  children.  He  might  have  chosen 
to  use  it  in  the  acquisition  of  any  of  the  many  kinds  of  personal 
property,  without  any  right  on  the  part  of  his  wife  to  complain  of, 
or  to  interfere  in,  his  acts.  Instead  of  confining  his  use  of  his 
moneys  to  purchases  of  personal  property,  or  instead  of  putting 
them  into  land  and  of  taking  title  to  himself,  he  has  adopted 
methods  set  forth  in  this  complaint  for  its  use,  and  they  were  effectual 
to  prevent  the  vesting  in  him  of  any  legal  estate  in  the  realty, 
although  paid  for  with  his  moneys.  He,  undoubtedly,  intended  to 
prevent  his  wife  from  acquiring  any  dower  right  in  the  real  property, 
in  the  purchase  and  sale  of  which  he  was  dealing  through  his  friend; 
but,  unless  he  was  actually  seised,  or  unless  he  had  such  a  seisin  at 
law  as  would  entitle  him  to  its  possession,  it  is  difficult  to  see  how 
his  wife  could  claim  that  she  ever  gained  any  dower  interest.  Her 
complaint  seems  to  concede  that  her  husband  acquired  no  legal  title, 
unless  through  the  agreement  alleged  to  have  existed  between  him 


II.  3-]  LIFE    ESTATES:     DOWER.  663 

and  Lewis.  But  that  agreement  is  not  one  which  could  operate  to 
vest  in  her  husband  any  right  to  the  actual  possession  of  the  prop- 
erty conveyed  to  Lewis.  The  agreement  is  purely  executory  in  its 
nature  and,  if  not  complied  with  by  Lewis,  would  only  have  given 
to  Phelps  a  cause  of  action  in  damages  for  its  breach.  Taken  at  its 
strongest  meaning,  it  cannot  be  said  to  import  any  grant  by  Lewis 
of  any  interest  in  the  property  to  be  acquired  by  him,  through  which 
a  legal  estate  would  arise  in  favor  of  Phelps.  It  does  not  rise 
beyond  the  promise  of  Lewis  that  Phelps  should  have  the  full  con- 
trol and  enjoyment  of  whatever  real  property  he  might  become  vested 
with  the  title  to,  under  their  arrangement.  Phelps'  rights  rested  in 
the  mere  promise  of  Lewis.  It  is  manifest,  from  the  statute,  that 
notwithstanding  the  consideration  for  the  grant  of  the  real  property 
to  Lewis  was  paid  by  Phelps,  the  title  vested  in  the  grantee,  free  of 
all  claims,  except  the  claim  which  creditors  might  have  to  assert 
that  the  transaction  was  fraudulent  as  to  them.  See  §§  51  and  52 
of  the  article  on  Uses  and  Trusts.1  It  is  needless  to  argue  that 
wives  cannot  come  under  that  classification. 

The  position  of  a  wife,  with  respect  to  her  husband's  property,  is 
limited  by  the  Revised  Statutes,  and  unless  she  can  bring  herself 
within  their  limitations,  she"  is  without  the  right  to  assert  any  claim 
to  it.  Concededly,  in  this  case,  the  husband  was  never  seised  of 
the  property  in  question  and  the  agreement  set  forth,  and  which  is 
claimed  to  confer  upon  him  its  real  ownership,  could  create  no  inter- 
est, or  right  to  possession.  If  it  were  possible  to  assume  a  right  in 
Phelps,  based  upon  the  agreement,  to  maintain  an  action  for  the 
reconveyance  by  Lewis  to  himself  of  the  lands,  such  an  assumption 
clearly  negatives  any  idea  of  the  existence  of  a  legal  estate  in  Phelps. 
We  may  assume,  as  it  is  alleged,  that  he  was  to  receive  the  benefits 
arising  from  the  lands;  but  if  there  was  a  beneficial  use,  it  must  be 
united  with  a  right  to  the  possession  (a  right  which  is  not  alleged 
here),  before  we  can  perceive  the  existence  of  any  estate,  upon  which 
a  claim  of  dower  may  be  impressed. 

It  is  not  pretended  that  any  precedent  exists  in  the  decisions  of 
the  courts  of  this  State  for  the  maintenance  of  this  action. 

So  far  as  my  examination  has  gone,  I  am  unable  to  find  in  the 
adjudged  cases  any  support  for  the  proposition  that  a  right  to  dower 
can  be  asserted,  except  with  respect  to  real  property  of  which  the 
husband  was  actually  seised  during  his  lifetime,  or  to  the  actual 
seisin  of  which  he  had  a  legal  right.  The  cases  referred  to  by  the 
respondent's  counsel  in  the  reports  of  the  courts  of  other  States  are 

1  See  §  74  of  the  New  York  "  Real  Property  Law."  —  Ed. 


664      ESTATES    AS   TO    QUANTITY    AND    QUALITY.      [PT.  IV.   CH.  I. 

inapplicable  in  the  construction  of  the  statutes  of  our  own  State. 
They  may,  or  may  not,  turn  upon  the  wording  of  particular  statutes; 
however  it  may  be  they  cannot  control  when  our  own  statutes  are 
in  question. 

It  results  from  my  consideration  of  the  case,  that  the  order  and 
judgment  below  should  be  reversed  and  that  an  order  should  be 
entered  dismissing  the  complaint,  with  costs  in  all  the  courts  to 
these  appellants. 


FONTAINE  v.  BOATMEN'S  SAVINGS  INSTITUTION. 

57  Missouri,  552.  —  1874. 

Suit  for  the  assignment  of  dower. 

Plaintiff  was  the  wife  of  Felix  Fontaine,  who  died  in  1849.  During 
the  coverture  one  Louis  Provenchere,  and  his  wife,  conveyed  the 
premises  in  question,  in  fee,  to  Fontaine,  who  at  once  conveyed  the 
same  to  one  Derouin,  in  trust  for  Provenchere's  wife.  Plaintiff  did 
not  join  in  the  last  conveyance.  The  title  has  passed  to  defendant 
by  several  intermediate  conveyances.  Judgment  below  for  defend- 
ant.     Plaintiff  brings  error. 

Wagner,  J.  *  *  *  The  case  was  tried  before  the  court  sitting 
as  a  jury;  and  at  the  close  of  the  testimony  plaintiff  requested  the 
court  to  declare  the  law  to  be,  that  on  the  evidence  and  admission 
in  the  cause  plaintiff  was  entitled  to  dower  in  the  land  described  in 
the  petition.  This  was  refused,  and  on  the  application  of  defendant 
the  court  gave  the  converse  of  the  proposition,  and  instructed  that 
under  the  evidence  in  the  case  the  plaintiff  was  not  entitled  to 
recover.  *  *  *  The  question  in  the  case,  therefore,  is  whether 
the  seisin  of  Fontaine,  the  plaintiff's  husband,  in  the  estate  was  of 
such  a  beneficial  interest  as  would  entitle  her  to  dower,  or  whether 
it  was  merely  transitory?  Perhaps  no  principle  of  the  law  is  more 
firmly  or  thoroughly  established  than  that  where  the  seisin  of  the 
husband  is  for  a  transitory  instant  only,  as  where  the  same  act  which 
gives  him  the  estate  also  conveys  it  out  of  him,  or  where  he  is  the 
mere  conduit  employed  to  pass  the  title  to  a  third  person,  no  right 
of  dower  passes.  1  Scrib.  Dow.  259.  To  this  principle  may  also  be 
referred  the  well  settled  doctrine  that  where  a  deed  for  lands  is 
executed,  and  simultaneously  therewith  the  purchaser  gives  back  a 
mortgage  upon  the  same  lands  to  secure  any  portion  of  the  purchase 
money,  he  acquires,  as  against  the  holder  of  the  mortgage,  no  such 
Beisin  as  will  entitle  his  wife  to  dower.  The  deed  and  mortgage, 
although  in  themselves  separate  and  distinct  instruments,  neverthe- 


II.  3-]  LIFE   ESTATES  :     DOWER.  665 

less,  under  the  circumstances  are  regarded  as  parts  of  the  same  con- 
tract. They  take  effect  at  the  same  time,  and  the  giving  of  the  deed 
upon  the  one  part,  and  of  the  mortgage  upon  the  other,  is  held  to 
constitute  but  a  single  act,  and  to  result  in  clothing  the  purchaser 
with  seisin  for  a  transitory  instant  only.     Id.  261  and  note  2. 

It  is  not  even  essential  to  the  application  of  this  rule  that  the  two 
instruments  should  correspond  in  date,  provided  they  are  delivered 
at  the  same  time,  as  they  take  effect  from  the  time  of  delivery  only. 
And  it  is  competent  to  show  by  parol  at  what  time  the  delivery  was 
actually  made.  Mayberry  v.  Brien,  15  Pet.  2 'i;  Reed v.  Morrison,  12 
S.  &  R.  18;  1  Washb.  Real  Prop.  178.  But  wherever  there  is  a 
beneficial  seisin  in  the  husband,  no  matter  how  short  the  time,  it  will 
be  sufficient  to  clothe  the  wife  with  the  right  of  dower.  In  Grant 
v.  Dodge,  43  Me.  ^89,  the  above  rules  were  recognized,  but  it  was 
said  that  if  the  tenant  would  defeat  the  demandant's  claim  of  dower, 
the  burden  would  be  upon  him  to  prove  that  the  deed  and  mortgage 
relied  on  constituted  one  transaction.  But  in  a  subsequent  case,  in 
the  same  court,  Moore  v.  Rollins,  45  Me.  493,  it  was  held  that  where 
one  has  received  a  deed  of  an  estate  and  given  back  a  mortgage  of 
the  same  to  secure  the  purchase  money,  if  the  deeds  are  of  the  same 
date,  have  the  same  attesting  witnesses,  and  are  acknowledged 
before  the  same  magistrate,  and  the  notes  secured  are  of  the  same 
date  with  the  mortgage,  in  the  absence  of  all  proof  to  the  con- 
trary, the  deeds  will  be  regarded  as  one  and  the  same  transaction. 
[T/tc  ease  of  McGowan  v.  Smith,  44  Barb.  233,  is  also  cited  and  con- 
strued,]     *     *     * 


KITTLE  v.  VAN  DYCK. 
1  Sandford's  Chancery  (N.  Y.),  76.  — 1843. 

The  Assistant  Vice-Chancellor. — *  *  *  Before  disposing  of 
the  case  on  this  point,  I  will  examine  another  question  which  was 
fully  discussed,  and  the  determination  of  which  may  be  a  guide  to 
both  parties  in  the  further  progress  of  the  suit:  viz.,  the  extent  of 
the  right  of  dower  of  Magdalen  Van  Dyck  in  the  premises,  and 
depending  upon  that,  her  interest  in  the  event  of  the  suit  and  her 
standing  as  a  witness. 

The  bond  and  mortgage  were  executed  on  the  same  day,  and  no 
doubt  at  the  same  time,  that  the  deed  was  given  and  the  money  paid 
to  Crandell.  In  Gilliam  v.  Moore,  4  Leigh's  R.  30,  where  the  verdict 
found  that  the  deed  and  mortgage  were  executed  on  the  same  day, 
the  court  say  they  are  bound  to  infer  that  they  were  given  at  the 


666      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

same  time,  and  were  parts  of  one  and  the  same  transaction.  The 
complainant  insists  that  the  bond  and  mortgage  were  given  for 
the  purchase  money  of  the  farm,  and  that,  therefore,  Magdalen 
Van  Dyck's  dower  therein  is  subject  to  the  mortgage;  that  she  is 
dowable  of  the  equity  of  redemption  only,  while  she  claims  dower  in 
the  whole,  and  denies  that  the  mortgage  was  given  for  the  purchase 
money  within  the  meaning  of  the  equitable  principle  on  that  subject 
which  is  now  embodied  in  our  statute. 

i  Rev.  Stat.  740,  1,  §  5,  enacts,  that  "  where  a  husband  shall  pur- 
chase lands  during  coverture,  and  shall  at  the  same  time  mortgage 
his  estate  in  such  lands  to  secure  the  payment  of  the  purchase  money, 
his  widow  shall  not  be  entitled  to  dower  out  of  such  lands  as  against 
the  mortgagee  or  those  claiming  under  him,  although  she  shall  not 
have  united  in  such  mortgage,  but  she  shall  be  entitled  to  her  dower 
as  against  all  other  persons."  ' 

As  this  provision  was  prospective,  it  does  not  affect  the  purchase 
and  mortgage  in  question,  which  were  made  and  given  before  the 
adoption  of  the  Revised  Statutes.  The  Legislature  in  this  section, 
it  is  supposed,  intended  to  enact  the  existing  rule  of  law.  This 
appears  from  the  report  of  the  revisers  accompanying  the  section. 

Chancellor  Kent,  in  his  commentaries,  says  that  the  transitory 
seisin  for  an  instant,  "  when  the  husband  takes  a  conveyance  in  fee, 
and  at  the  same  time  mortgages  the  land  back  to  the  grantor  or  to 
a  third  person,  to  secure  the  purchase  money  in  whole  or  in  part," 
is  not  sufficient  to  give  the  wife  dower.    4  Kent's  Com.  38,  39,  2d  ed. 

No  reported  adjudication  that  I  have  met  with  in  the  courts  of 
this  State,  goes  as  far  as  the  learned  commentator  has  declared  the 
principle  to  extend.  The  leading  case  is  Stow  v.  Tift,  15  Johns.  R. 
462.  In  that  case,  as  well  as  the  subsequent  one  of  Jackson  d.  Bruyn 
v.  De  Witt,  6  Cowen,  316,  the  mortgage  for  the  purchase  money  was 
given  to  the  grantor.  This  was  the  fact  also  in  the  following  cases 
in  other  States  where  the  same  decision  was  made:  Boyce  v.  Rut- 
ledge,  1  Bay's  R.  312;  Trustees  of  Brazier  v.  Center,  1  McCord's  Ch. 
R.  270,  279;  Gilliam  v.  Moore,  4  Leigh,  ubi  supra.  And  Holbrook 
v.  Binney,  4  Mass.  566. 

The  principle  on  which  the  doctrine  rests,  clearly  extends  to  the 
case  of  mortgages  to  third  persons.  In  the  judgment  of  the  court, 
as  pronounced  by  Judge  Spencer  in  Stow  v.  Tift,  it  is  placed  on  the 
ground  that  the  seisin  of  the  husband  is  an  instantaneous  seisin  only; 
that  the  estate  passes  in  to  him  and  is  drawn  out  of  him,  quasi  11110 
ftatu,  and  by  one  and  the  same  act.  Or  as  expressed  by  Mr.  Park 
in  his  Treatise  on  the  Law  of  Dower,  page  43,  "  The  seisin  of  the 

1  See  §  173.  N.  Y.  R.  P.  L.  —  Ed. 


II.  3-]  LIFE   ESTATES:     DOWER.  667 

husband  is  for  a  transitory  instant;  that  is  to  say,  where  the  same 
act  which  gives  him  the  estate,  conveys  it  out  of  him  again."  Chief 
Justice  Parsons  in  Holbrook  v.  Finney,  takes  the  same  ground.  It 
can  make  no  possible  difference  in  the  duration  or  the  transit  of  this 
seisin,  whether  the  mortgage  be  given  to  the  grantor  or  to  a  third 
person.  In  either  event,  he  gains  the  estate  in  the  same  instant, 
and  by  the  same  act,  which  conveys  it  out  of  him. 

Now,  in  this  case,  the  substance  of  the  transaction  was  this:  We 
will  suppose  the  three  parties,  Crandell  and  Maria  and  Henry  P.  Van 
Dyck  together;  and  if  they  were  not  all  present,  some  one  must  have 
acted  for  the  absentee.  Crandell  delivered  his  deed  to  Henry. 
Maria  Van  Dyck  paid  the  $2,000  to  Crandell,  and  Henry  delivered 
his  bond  and  mortgage  to  her  for  the  $2,000.  Each  of  these  events 
was  in  consideration  of  the  other.  They  were  inseparably  connected 
by  the  previous  contract  between  the  parties,  and  in  contemplation 
of  law,  were  all  accomplished  at  the  same  moment  of  time.  The 
seisin  of  Henry  was  but  for  an  instant.  He  received  it  by  means  of 
the  money  of  his  mother,  paid  to  Crandell,  and  it  passed  out  of  him 
in  the  same  instant,  by  the  mortgage  to  secure  that  money. 

If  Henry  had  executed  the  mortgage  to  Crandell,  and  he  at  the 
same  time  assigned  it  to  Maria  V.  D.,  and  received  the  $2,000  from 
her,  or  from  Henry,  he  having  borrowed  it  of  her,  no  question 
would  have  been  made.  Wherein  does  the  transaction  before  me 
differ  from  that  mode,  in  any  matter  of  substance  ? 

If  in  fact  the  money  were  paid  by  Maria  to  Henry,  and  by  Henry 
to  Crandell,  it  would  make  no  difference  in  the  result.  It  was  all 
done  in  pursuance  of  the  previous  agreement.  The  loan  and  pur- 
chase were  parts  of  the  same  transaction.  Without  the  one,  the 
other  would  not  have  been  made,  and  they  were  consummated 
together. 

The  cases  already  cited  show  the  uniform  application  of  the 
principle  of  American  law,  which  excludes  dower,  as  against  a  mort- 
gage given  for  the  purchase  money,  to  the  vendor.  The  two  follow- 
ing go  the  whole  length  of  the  case  under  consideration. 

In  Clark  v.  Munroe,  14  Mass.  351,  one  Andrews  conveyed  the 
premises  to  W.  Clark,  who  at  the  same  time  mortgaged  them  to  one 
Winthrop.  The  consideration  of  the  deed  from  Andrews  to  W. 
Clark  was  the  property  of  Winthrop,  and  the  mortgage  was  given  to 
him  in  pursuance  of  a  previous  agreement  between  the  parties. 
The  court  held  that  the  wife  of  W.  Clark  was  not  entitled  to  dower, 
and  that  the  case  was  no  different  from  what  it  would  have  been  had 
the  mortgage  been  made  to  Andrews  instead  of  Winthrop. 

In  M'Cauley  v.  Grimes,    2    Gill   &  Johns.  318,   Charles    M'Cauley 


668      ESTATES   AS    TO    QUANTITY    AND    QUALITY.      [PT.  IV.  CH.  I. 

held  a  large  tract  of  land  derived  from  his  father,  considerably 
beyond  his  just  share  of  his  father's  estate.  In  arranging  and  divid- 
ing the  estate,  it  was  agreed  by  all  the  parties,  that  Charles  should 
convey  the  land  to  his  brother  Hugh,  and  Hugh,  in  consideration 
thereof,  should  pay  to  his  brothers  and  sisters  certain  stipulated 
sums,  and  to  secure  the  payment  should  execute  a  mortgage  of  the 
land  to  them,  when  he  received  it  from  Charles.  Those  sums,  it 
was  agreed,  should  be  received  as  their  respective  portions  of  their 
father's  estate.  Charles  accordingly  executed  the  deed  to  Hugh, 
and  at  the  same  time  Hugh  executed  the  mortgage  and  his  bonds  to 
the  other  brothers  and  sisters.  The  Court  of  Appeals,  in  an  opinion 
reviewing  the  American  cases,  decided  that  Hugh's  widow  was  not 
entitled  to  dower  against  the  mortgage. 

I  am  entirely  satisfied  that  by  the  law  as  established  in  this  State, 
a  widow  is  not  entitled  to  dower  in  land  conveyed  to  her  husband 
during  coverture,  which  he  mortgaged  to  secure  the  purchase  money, 
whether  the  mortgage  were  given  to  the  grantor  of  the  land  or  to  a 
third  person;  and  that  in  such  case  she  is  only  dowable  of  the  equity 
of  redemption.  Here  the  mortgage  in  question  was  given  for  the 
purchase  money,  at  the  same  time  that  the  land  was  conveyed  to 
the  husband,  in  pursuance  of  a  previous  arrangement.  The  widow, 
Magdalen  Van  Dyck,  therefore  takes  her  dower  in  the  farm  subject 
to  the  mortgage.  See  Card  v.  Bird,  10  Paige,  426,  decided  Novem- 
ber 21,  1843.  It  follows  that  she  was  an  interested  witness,  and 
her  testimony,  as  it  is  now  presented  in  the  cause,  would  be 
excluded,  if  the  cause  were  to  be  determined  upon  the  merits.1 


(c.)  Death  of  husband,"1 


1  See  also  Smith  v.  AlcCarty,  119  Mass.  519.  See  also  N.  Y.  R.  P.  L.  §  173.  —  Ed. 

2  For  "  a  resume  of  legislation  and  judicial  decisions  in  this  state  and  in  Eng- 
land upon  the  subject  of  property  rights,  as  affected  by  civil  death,  see  Avery  v. 
Everett,  no  N.  Y.  317.  In  some  States  divorce  make  dower  consummate.  For 
this  and  some  other  peculiarities,  see  Stimson's  Am.  Stat.  Law,  §§  6251  A., 
3204. —  Ed. 


II.  3-]  LIFE   ESTATES  :     DOWER.  669 

(3.)  In  What  Estates  and  Lands  a  Widow  May  Have  Dower. 
{a.)  In  general — in  estates  of  inheritance.1 

GOODWIN  v.  GOODWIN. 

33  Connecticut,  314.  —  1866. 
[Reported  herein  at  p.  8.]2 


JOHNS  v.  JOHNS. 

1  Ohio  State,  350.  —  1853. 

[Reported  herein  at  p.  14.] 

(b.)  As  to  estates  of  inheritance  in  expectancy. 

DURANDO  v.  DURANDO. 
23  New  York,  331.  —  1861. 
[Reported  herein  at  p.  658.] 


(c.)  In  the  case  of  determinable  estates. 

EVANS  v.  EVANS. 

9  Pennsylvania  State,  190.  —  1848. 

Devise  by  Sarah  Evans  to  her  two  sons,  George  and  Oliver,  "and 
to  their  heirs  and  assigns,  share  and  share  alike;  but  should  either 
of  my  sons  die  without  leaving  lawful  issue,  living  at  the  time  of  his 
death,  then  the  estate  of  such  son,  so  dying  without  issue,  shall  vest 
in  the  surviving  brother  and  his  heirs  forever. ' '  Oliver  died  without 
issue  and  the  widow  brings  suit  for  dower  in  the  lands  owned  by  him 
in  his  lifetime.     She  succeeded  in  the  court  below. 

Gibson,  C.  J.  —  Notwithstanding  what  the  conveyancers  and  text- 
writers  have  said  about  the  difficulty  presented  to  us,  not  one  of 
them  has  hinted  at  the  true  solution  of  it,  except  Mr.  Preston.  All 
agree  that  where  the  husband's  fee  is  determined  by  recovery,  con- 
dition, or  collateral  limitation,  the  wife's  dower  determines  with  it. 

1  See  N.  Y.  R.  P.  L.  §§  170-175.  For  "  widows  quarantine,''  see  §  184  N.  Y.  R. 
P.  L.  Dower  has  been  modified  or  abolished  in  many  States.  In  some  dower 
can  be  had  only  in  lands  of  which  the  husband  died  seised.  —  Ed. 

2  See  however  ch.  121,  §§  r  and  2  Mass.  Pub.  Stat.  1882-1887,  transcribed 
infra,  p.         ,  under"  Leaseholds."  —  Ed. 


67O      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

But  why  a  collateral  limitation,  rather  than  by  any  other  limitation 
of  the  estate,  which  extinguishes  the  husband's  fee,  of  which  the 
dower  is  but  an  appendage  ?  I  have  a  deferential  respect  for  the 
opinions  of  Mr.  Butler,  who  was,  perhaps,  the  best  conveyancer  of 
his  day;  but  I  cannot  apprehend  the  reason  of  his  distinction  in  the 
note  to  Co.  Litt.  241  a,  between  a  fee  limited  to  continue  to  a  par- 
ticular period  at  its  creation,  which  curtesy  or  dower  may  survive, 
and  devise  of  a  fee  simple,  or  a  fee  tail  absolute  or  conditional, 
which,  by  subsequent  words,  is  made  determinable  upon  some  par- 
ticular event,  at  the  happening  of  which,  curtesy  or  dower  will  also 
cease.  In  Doe  v.  Hutton,  Lord  Alvanly  spoke  doubtingly  of  it,  and, 
without  absolutely  dissenting  from  it,  refused  to  give  it  his  approba- 
tion. The  system  of  estates  at  the  common  law  is  a  complicated  and 
an  artificial  one;  but  still  it  is  a  system  complete  in  all  its  parts,  and 
consistent  with  technical  reason.  But  how  to  reconcile  to  any 
system  of  reason,  technical  or  natural,  the  existence  of  a  derivative 
estate,  after  the  extinction  of  that  from  which  it  was  derived,  was 
for  him  to  show;  and  he  has  not  done  it.  He  drew  his  instances 
from  statutory  estates,  whose  limitations  have  been  moulded  more 
benignly;  and  though  he  affirms  that  a  wife  might  have  been  endowed 
of  an  extinct  conditional  fee  before  the  statute  de  donis,  he  gives  no 
precedent  for  it.  The  case  of  a  tenant  in  tail,  says  Mr.  Preston  in 
his  abstracts  of  Title,  vol.  3,  372,  "  is  an  exception  arising  from  an 
equitable  construction  of  the  statute  de  donis;  and  the  cases  of  dower 
of  estates  determinable  by  executory  devise  and  springing  use,  owe 
their  existence  to  the  circumstance  that  these  limitations  are  not 
governed  by  common-law  principles."  The  mounting  of  a  fee  on  a 
fee  by  executory  devise,  is  proof  of  that.  This  very  satisfactory 
solution  of  the  doubt  was  glanced  at,  but  not  developed,  in  Buck- 
worth  v.  Thirkell.  Before  the  statute  of  wills,  there  was  no  execu- 
tory devise;  and  before  the  statute  of  uses,  there  was  no  springing 
use.  Like  estates  tail,  which  were  created  by  the  statute  de  donis, 
and  of  which  there  is  constantly  dower,  though  tenant  in  tail  claims 
per  ferman  doni,  it  was  the  benign  temper  of  the  judges  who  moulded 
the  limitations  of  the  estates  introduced  by  them,  whether  original 
or  derivative,  so  as  to  relax  the  severer  principles  of  the  common 
law;  and  among  other  things,  to  preserve  curtesy  and  dower  from 
being  barred  by  determinations  of  the  original  estate,  which  could 
not  be  prevented.  Sammes  and  fame's  Case,  1  Leo,  167,  is  an 
example  of  this  temper,  in  the  case  of  a  springing  use.  A  mother 
covenanted  to  stand  seised  to  the  use  of  her  elder  daughter,  on  con- 
dition that  she  would  pay  ^/j 00  to  her  other  daughter,  within  a  year 
after  she  should  attain  the   age  of  eighteen;  and  if  the  elder  should 


II.  3-]  LIFE    ESTATES:     DOWER.  671 

fail  in  payment,  or  die  without  issue  before  the  day  of  payment, 
then  to  the  use  of  the  other  daughter  in  tail.  The  mother  died;  the 
elder  took  husband,  had  issue,  and  died  without  issue  before  the  day 
of  payment;  and  it  was  adjudged  that  the  husband  should  be  tenant 
by  the  curtesy.  Flavell  v.  Ventrice,  1  Roll.  Abr.  676,  was  also  the 
case  of  a  springing  use;  in  which,  however,  the  court  was  divided. 
That  two  of  the  judges  had  not  embraced  the  new  faith  at  that  day, 
is  not  surprising;  but  that  Lord  Eldon  should  have  inclined  to  think 
as  he  did,  in  Maundrell  v.  Maundrell,  10  Ves.  263,  that  a  husband 
might  bar  his  wife's  dower  by  executing  a  power  of  appointment,  is 
more  remarkable.  He  was  still  groping  after  a  fancied  distinction 
between  a  collateral  limitation  and  a  limitation  of  the  estate  which, 
if  it  exists,  has  nothing  to  do  with  an  estate  conveyed  to  uses.  It 
may  be  safely  said,  that  Buckworth  v.  Thirkell,  Goodenough  v.  Goode- 
nough,  and  Moody  v.  King,  had  a  solid  foundation  in  the  interpreta- 
tion of  the  statutes  which  sustained  the  estate  from  which  the  curtesy 
or  dower  was  derived.  Lord  Alvanly  is  reported  to  have  said,  in 
Doe  v.  Hutton,  3  B.  &  P.  653,  that  Buckworth  v.  Thirkell  made  a  good 
deal  of  noise  in  the  profession  at  the  time  it  was  decided  —  a  remark 
which  was  properly  disposed  of  by  Chief  Justice  Best,  in  Moody  v. 
King.  "Whatever  conveyancers  might  have  thought  of  the  case," 
said  he,  "  when  it  was  first  decided,  they  have  since  considered  it  as 
having  settled  the  law;  and  it  would  be  productive  of  much  confusion 
if  we  were  to  unsettle  it  again."  Including  the  decision  then  made, 
we  have  three  cases  in  point,  without  an  antagonistic  case  in  all  the 
books;  and  if  to  overturn  them  for  the  sake  of  a  technical  principle 
would  have  bred  much  confusion  then,  it  would  breed  more  confusion 
now.  The  English  courts  have  gone  upon  a  liberal  principle,  and 
we  are  bound  to  follow  them. 

Judgment  affirmed. 


EDWARDS  v.  BIBB. 
54  Alabama,  475.  —  1875. 


Stone,  J.  —  *  *  *  Under  this  will  thus  construed,  Thomas 
Bibb,  Jr.,  either  took  a  fee  simple,  having  another  fee  engrafted 
upon  it  by  way  of  executory  devise,  to  come  into  being  on  the  hap- 
pening of  an  event  therein  provided  for  as  a  conditional  limitation, 
or  he  took  only  a  life  estate,  and  at  his  death,  his  lawful  male  issue, 
if  he  had  left  such,  would  have  taken  as  purchasers.  If  the  latter 
be  the  true  construction  of  the  devise,  no  one  will  contend  that 
Thomas  Bibb's  widow  would  be  dowable  of  the  lands.     Supposing, 


6j2      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CII.  I. 

then,  that  the  estate  of  Thomas  Bibb  was  a  defeasible  fee,  the  ques- 
tion comes  up,  is  his  widow  entitled  to  dower,  the  estate  of  her  hus- 
band having  expired  with  his  life? 

Few  questions  of  the  law  have  been  discussed,  or  have  given  rise 
to  more  perplexing  distinctions  than  that  of  the  widow's  right  to 
dower  in  lands,  the  title  to  which  passed  out  of  her  husband  con- 
temporaneously with  his  death,  by  force  of  some  limitation,  rever- 
sion or  remainder.  The  case  in  hand  is  one  of  remainder,  which  has 
taken  effect.  The  question  is  thus  stated  by  a  very  accurate  writer: 
"  Is  the  widow  entitled  to  dower  after  the  estate  of  her  husband  has 
determined,  before  its  natural  expiration,  by  the  happening  of  an 
event  particularly  mentioned  in  the  instrument  creating  it,  but  with- 
out disturbing  or  overreaching  his  prior  seisin?  " 

The  case  of  Buckworth  v.  Thirkell,  is  one  of  the  first  cases  on  this 
question.  3  Bos.  &  Pul.  652,  note.  That  case  came  before  Lord 
Mansfield,  one  of  England's  greatest  jurists,  and  it  was  determined 
that  the  husband  was  entitled  to  curtesy.  The  rule  in  regard  to 
dower  is  the  same  on  this  question  as  that  in  regard  to  curtesy. 

The  case  of  Buckworth  v.  Thirkell  has  not  had  the  good  fortune 
of  commanding  universal  assent.  Mr.  Butler,  in  his  note  to  Coke 
upon  Littleton,  page  141,  while  conceding  that  upon  the  termination 
of  an  estate  tail  by  the  failure  of  issue,  the  right  of  curtesy  or  dower 
will  attach  as  a  prolongation  of  the  estate,  yet  contended  that  when 
a  fee  simple  is  determined  by  a  valid  executory  devise,  neither 
curtesy  nor  dower  ensues.  Other  writers  contend  for  the  same  dis- 
tinction. See  very  full  discussions  of  this  question  in  Park  on 
Dower,  page  157  et  seq.;  1  Scrib.  on  Dower,  284  et  seq.  To  fol- 
low them  through  the  shadowy  mazes  of  their  disquisitions  would 
tend  rather  to  bewilder  than  instruct.  The  human  mind  is  not 
wont  to  rest  satisfied  with  distinctions  when  it  can  find  no  substantial 
differences  to  rest  them  on. 

Speaking  of  dower,  as  affected  by  conditional  limitations,  Chan- 
cellor Kent  says:  "  The  estate  of  the  husband  is,  in  a  more 
emphatical  degree,  overreached  and  defeated  by  the  taking  effect  of 
the  limitation  over,  than  in  the  case  of  collateral  limitation;  "  and, 
he  adds,  "  the  ablest  writers  on  property  law  are  evidently  against 
the  authority  of  Buckworth  v.  Thirkell,  and  against  the  right  of  the 
doweress  when  the  fee  of  the  husband  is  determined  by  executory 
devise,  or  shifting  use."     4  Kent's  Com.  50. 

Mr.  Jacob,  in  his  learned  note  published  in  the  appendix  to  2 
Bright  on  H.  &  W.,  p.  468,  says:  "  Upon  the  introduction  of  con- 
ditional limitations  by  way  of  use  and  executory  devises,  it  became 
a  question   whether  dower  or  curtesy  should  cease  when  the  estate 


II.  3-]  LIFE    ESTATES:     DOWER.  673 

was  determined  by  either  of  these  modes.  Upon  principle,  it  would 
seem  that  the  decision  of  this  question  ought  to  be  guided  by  analogy 
to  the  general  rule  of  the  common  law,  and  not  by  analogy  to  the 
excepted  case  of  an  estate  tail.  .  .  .  The  conditional  limitation 
destroying  the  estate,  defeats  the  whole  of  that  which  is  expressly 
granted.  It  would  be  singular,  if  that  which  is  included  in  the  grant 
by  implication  only,  could  be  preserved."  He  adds,  "  The  supposed 
rule  (speaking  of  Mr.  Preston's  attempt  to  justify  the  rule  laid 
down   in  Buck-worth  v.  T/u'rkell)  rests  on  very  doubtful  grounds." 

In  New  York,  it  was  decided  by  Chancellor  Walworth  that  where 
an  estate  in  fee  was  terminated  by  the  happening  of  a  conditional 
limitation,  and  the  executory  devisees  took  as  purchasers,  the  widow 
of  the  first  devisee  could  not  have  dower.  See  Adams  v.  Beekman, 
1  Paige,  631. 

In  the  case  of  Welter  v.  Welter,  28  Barbour,  588,  the  same  ques- 
tion arose  as  in  Adams  v.  Beekman,  supra.  The  court  said,  "  The 
widow  takes  her  estate  through  the  husband  and  not  from  him  like 
one  who  inherits;  for  he  can  do  no  act  which  will  divest  her  right. 
And  when  the  estate  of  the  husband  is  determined  by  the  happening 
of  an  event  which  defeats  its  further  continuance,  the  estate  in 
dower  must  be  determined  with  it.  It  is  a  part  of  the  same  estate 
of  freehold  and  inheritance  of  which  the  husband  was  seized,  and, 
to  the  extent  of  it,  so  much  abstracted  from  what  would  otherwise 
descend  to  the  heirs  at  law.  .  .  .  The  wife's  right  to  dower 
ceased  with  the  estate  out  of  which  it  could  only  proceed.  This 
conclusion  conflicts  with  Lord  Mansfield's  judgment  in  Buckworth 
v.  Thirkell.  It  is  the  rule,  however,  given  by  Mr.  Cruise  in  his 
treatise  on  the  law  of  real  property,  and  is  the  rule  now  sustained 
by  Mr.  Park  with  singular  ability  in  his  work  on  the  law  of  dower." 

Washburn,  in  his  work  on  real  property,  vol.  1,  p.  212,  says: 
"  There  is  a  class  of  cases  where,  what  at  first  sight  might  seem  to 
be  an  inconsistent  doctrine  is  applied.  Thus,  in  the  familiar  case  of 
tenant  in  tail  dying  without  issue,  although  the  estate,  as  one  of 
inheritance,  is  determined,  and  the  remainder  over  upon  such  a  con- 
tingency takes  effect,  yet,  it  having  been  an  estate  of  inheritance  in 
the  tenant,  his  widow,  if  he  dies,  will  be  entitled  to  dower,  it  being 
by  implication  of  law  annexed  to  such  an  estate  as  an  incidental 
part  of  it;  a  portion  of  the  quantity  of  enjoyment  designated  by  the 
terms  of  limitation  itself.  And  the  doctrine  is  broadly  laid  down  by 
writers  upon  the  subject,  that  wherever  the  husband  is  seized  during 
coverture  of  such  an  estate  as  is  in  its  nature  subject  to  the  attach- 
ment of  dower,  the  right  of  dower  will  not  be  defeated  by  the  deter- 
mination of  that  estate  by  its  regular  and  natural  limitation."     He 

LAW  OF  PROP.  IN  LAND  —  43 


674      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.   CH.  I. 

adds:  "  This  class  of  cases  has  given  rise  to  much  ingenious  specu- 
lation and  grave  diversity  of  opinion,  where  the  estate  of  the  hus- 
band is  one  of  inheritance,  but  ceases  at  his  death  by  what  is  called 
a  conditional  limitation." 

The  case  of  Buckworth  v.  T/iirke//  was  followed  in  Moody  and  Wife 
v.  -King,  2  Bing.  447 ;  and  in  this  country,  in  the  cases  of  Milledge  v. 
Lamar,  4  De  Saussure  (So.  Car.),  617;  Evans  v.  Evans,  9  Barr.  (Pa.) 
190,  and  Northcut  v.  Whipp,  12  B.  Monroe  (Ky.),  65.  In  a  later 
case  in  South  Carolina,  Wright  v.  Herron,  6  Rich.  Eq.,  the  court  of 
errors  was  equally  divided,  and  no  decision  was  pronounced.  This 
case  presented  the  same  question  as  the  one  presented  in  Buckworth 
v.  Thirkett. 

In  the  case  of  Evans  v.  Evans,  supra,  the  opinion  of  the  Supreme 
Court  of  Pennsylvania  was  pronounced  by  Chief  Justice  Gibson  — 
one  of  the  ablest  jurists  that  ever  sat  on  that  bench.  It  will  be  seen 
that  he  was  laboring  to  break  down  the  imaginary  distinction 
attempted  to  be  drawn  by  Mr.  Butler  and  others  between  the  cases 
of  remainder  over,  made  and  provided  to  take  effect  after  the 
termination  of  an  estate  tail  by  failure  of  issue,  and  the  termination 
of  an  estate  in  fee  simple  by  failure  of  heirs,  with  a  valid  limitation 
over  by  way  of  executory  demise.  He  says:  "  I  cannot  apprehend 
the  reason  of  his  (Mr.  Butler's)  distinction  between  a  fee  limited 
to  continue  to  a  particular  period  at  its  creation,  which  curtesy  or 
dower  may  survive,  and  the  devise  of  a  fee  simple,  or  a  fee  tail,  abso- 
lute or  conditional,  which,  by  subsequent  words,  is  made  determin- 
able upon  some  particular  event,  at  the  happening  of  which  curtesy 
or  dower  will  also  cease."  He  propounds,  and  in  effect  answers, 
the  following  pertinent  inquiry,  "  How  to  reconcile  to  any  system 
of  reason,  technical  or  natural,  the  existence  of  a  derivative  estate, 
after  the  extinction  of  that  from  which  it  was  derived,  was  for  him 
(Mr.  Butler)  to  show;  and  he  has  not  done  it." 

Any  attempt  to  maintain  a  distinction  between  the  claim  of  dower 
or  curtesy,  when  the  inheritance  in  an  estate  tail  has  failed,  and  a 
limitation  over  has  taken  effect,  per  for  mam  doni,  and  the  same  result 
when  an  estate  in  fee  has  been  determined  by  the  happening  of  the 
event  upon  which  a  conditional  limitation  over  was  made  to  take 
effect,  by  the  terms  of  the  instrument  creating  the  title,  is  too  arti- 
ficial and  technical  to  command  our  assent.  Dower  is  a  derivative 
estate;  it  is  derived  from  the  estate  of  the  husband.  It  is  the  crea- 
ture of  the  law,  not  of  contract.  While  the  husband  lives,  there  is 
no  estate  in  dower.  It  is  an  interest,  carved  out  of,  or  abstracted 
from  the  inheritance;  or  out  of  the  estate  of  the  husband's  alienee, 
if  the  widow  survives,  and  has  not  relinquished  her  dower.     The  hus- 


II.  3-]  LIFE   ESTATES:    DOWER.  675 

band,  by  any  conveyance  made,  or  recovery  suffered  by  him,  cannot 
bar,  or  impair  her  right. 

When,  however,  by  the  very  terms  of  the  conveyance  or  devise, 
legal  in  form  and  purpose,  the  estate  of  the  husband  expires  with 
him,  cutting  off  per  formam  doni,  the  heritable  quality  of  his  estate, 
and  the  title  passes  to  another  as  purchaser  by  a  valid  limitation 
over,  the  primitive  estate  is  gone,  and  there  is  nothing  left  from 
which  dower  can  be  derived.  We  do  not  declare  what  would  be  the 
result,  if  the  case  were  one  of  mere  reversion  to  the  demisor  or 
grantor.  It  will  be  time  enough  to  consider  that  question  when  it 
arises.  Decree  affirmed. 


(d.)  Dower  in  equitable  estates  0/  inheritance. 

HOPKINSON  v.  DUMAS. 
42  New  Hampshire,  296.  —  1861, 

Suit  for  dower  in  certain  premises.  It  is  admitted  that  plaintiff 
is  entitled  to  dower  in  one-fifth  of  the  premises,  but  she  claims 
dower  in  all. 

Hopkinson,  plaintiff's  husband,  and  four  others  agreed  to  unite  in 
the  purchase  of  the  premises  in  question,  each  to  take  a  fifth.  The 
deed  was  made  to  Hopkinson  and  he  gave  his  notes  (the  other  four 
joining  as  sureties)  for  part  of  the  purchase  price.  One  thousand 
dollars  was  paid  down,  each  contributing  his  share,  and  Hopkinson 
gave  a  receipt  for  the  same,  acknowledging  the  trust. 

Later  on  Hopkinson  made  an  arrangement  for  the  purchase  of  the 
interests  of  the  other  four,  giving  a  mortgage  for  the  purchase  price. 
This  mortgage  has  been  foreclosed  and  defendant  makes  title  under 
the  foreclosure.  Mrs.  Hopkinson  has  never  released  her  interest  in 
the  land.     The  questions  of  law  were  reserved  for  this  court. 

Sargent,  J. — *  *  *  We  see  no  objection  on  this  proof,  to 
holding  that  there  was,  in  this  case,  prior  to  the  giving  of  the  receipt 
by  Hopkinson,  and  that  there  would  have  been,  without  any  such 
receipt,  a  resulting  trust  to  each  of  those  who  signed  the  notes  as 
sureties.  Our  statute  provides  that  "  no  trust  concerning  lands, 
excepting  such  as  may  arise  or  result  by  implication  of  law,  shall  be 
created  or  declared,  unless  by  an  instrument  signed  by  the  party 
creating  the  same,  or  by  his  attorney."  Rev.  Stat.  ch.  130,  § 
13;  Comp.  Laws,  290. 

But  although  a  trust  cannot  be  created  or  declared  by  parol 
evidence  yet  a  resulting  trust  may  be  shown  by  that  kind  of 
proof;  it  may  be    proved,   rebutted,  or  discharged    by    parol    evi- 


6j6      ESTATES   AS   TO    QUANTITY   AND   QUALITY.      [PT.  IV.  CH.  I. 

dence.  Scoby  v.  Blanchard,  3  N.  H.  170;  Pritchard  \ .  Brown,  4  N. 
H.  397;  Page  v.  Page,  8  N.  H.  187;  Brooks  v.  Fowle,  14  N.  H.  248; 
Pembroke  v.  Allenstotvn,  21  N.  H.  107;  Gove  v.  Lawrence,  26  N.  H. 
484;  Tebbetts  v.  Felton,  31  N.  H.  273.  Parol  evidence  is  admissible 
to  show  a  resulting  trust,  but  not  to  show  any  other.  Farrington 
v.  Barr,  36  N    H.  86;  Moore  v.  Moore,  38  N.  H.  382. 

So  that  if  there  were  no  trust  declared  in  the  case  in  writing, 
there  would  seem  to  be  no  difficulty  in  holding  that  a  trust  upon  the 
facts  stated,  resulted  by  operation  of  law.  But  we  think  that  this 
is  not  perhaps  the  more  correct  view  to  take  of  the  case.  Here  is 
a  trust  declared  in  writing,  which,  although  dated  after  the  date 
of  the  deed,  evidently  contains  the  agreement  and  understanding  of 
the  parties,  not  only  at  the  time  of  its  date,  but  also  at  the  date  of 
the  deed,  and  we  think  this  written  declaration  of  the  trust  should 
be  and  must  be  considered  as  part  of  the  original  transaction,  and 
that  the  giving  of  the  deed,  the  agreements  and  the  giving  of  this 
writing  should  be  considered  together,  as  one  transaction,  as  the 
different  parts  of  the  same  contract  and  agreement. 

The  trust  declared  in  the  writing  is  evidently  the  same  that  had 
existed  prior  to  its  date,  and  includes  evidently  the  full  agreement 
that  was  made  originally,  that  all  the  time  continued  to  exist  between 
the  parties  until  the  new  arrangement  by  which  Hopkinson  bought 
the  others  out  and  gave  back  a  mortgage  of  the  premises  to  them  as 
their  securities.  Taking  the  deed  to  Hopkinson  and  the  money 
paid,  the  notes  given  and  the  writing  given  back  to  them  declaring 
the  trust,  as  parts  of  the  same  transaction  and  as  containing  the 
whole  of  the  arrangement  between  them,  from  the  beginning,  we 
are  left  in  no  doubt  about  the  rights  of  the  parties  so  far.  And  the 
only  remaining  question  is,  the  one  arising  out  of  the  sale  to  Hopkin- 
son, and  the  mortgage  back  of  the  same  premises,  on  the  13th  day 
of  May,  1857. 

We  do  not  understand  that  there  is  any  question  made  but  what 
the  arrangement  then  made  was  such  that  whatever  interest  was 
conveyed  to  Hopkinson  by  the  others,  was  at  the  same  time  recon- 
veyed  by  him  to  them  in  mortgage.  His  seizin. of  such  interest  as 
they  conveyed  was  but  instantaneous.  To  be  sure  they  gave  him 
no  <\rc<\  of  any  right,  nor  did  they  need  to  do  so.  He  had  the  legal 
title  before.  Theirs  was  the  equitable,  the  trust  estate,  which  did 
not  appear  of  record,  and  which  would  have  been  unavailable  to 
them  as  against  a  creditor  of  or  a  purchaser  from  said  Hopkinson, 
witho  it  notice  of  the  existence  of  such  estate. 

It  ied  that  this   written  agreement  does  not  create  a  trust 

estate    in    the    lands;    that    it  gives  only  certain  equitable  rights,  but 


II.  3-]  LIFE    ESTATES  :     DOWER.  677 

no  present  estate,  so  that  a  court  of  equity,  upon  an  application  of 
the  cestuis  que  trust,  could  not  have  decreed  a  conveyance  of  the 
legal  title,  except  upon  the  performance  of  certain  conditions  pre- 
cedent, to  be  performed  by  themselves.  But  without  considering  or 
discussing  that  point,  and  without  stopping  here  to  inquire  what 
difference  there  would  be,  if  any,  between  the  trust  here  created 
and  a  trust  estate  created  by  deed  and  appearing  of  record,  let  us, 
for  the  purposes  of  this  case,  assume  that  Coffin  and  the  others  had 
a  present  equitable  estate  in  the  premises,  just  the  same  as  though 
the  deed  which  conveyed  the  premises  to  Hopkinson  had  declared 
the  trust  and  given  to  Coffin  and  others  an  equitable  estate  which 
appeared  of  record,  and  that  the  equitable  estate  had  been  conveyed 
to  Hopkinson  by  deed  at  the  time  when  the  mortgage  was  given 
back  by  him. 

Upon  this  supposition,  the  question  that  arises  is,  where  the  legal 
and  equitable  estates  meet  in  the  same  person,  but  by  different  con- 
veyances, at  different  times,  and  he  thereby  becomes  seized  in  fee 
of  the  whole  estate,  which  estate  merges  in  the  other,  and  which 
draws  the  other  after  it  ?  Does  the  equitable  estate  merge  in  the 
legal  and  the  title  in  fee  to  the  whole  relate  back  to  and  date  from 
the  commencement  of  the  legal  estate?  If  this  be  so,  then  the 
plaintiff  takes  dower  in  the  whole  premises.  But,  if  the  opposite 
doctrine  be  true,  that  the  legal  title  merges  in  the  equitable,  on 
becoming  united  in  the  same  person,  and  his  title  in  fee  relates  back 
only  to  and  dates  from  the  commencement  of  his  equitable  interest, 
then  this  plaintiff  does  not  take  dower  in  any  but  her  husband's 
one-fifth  part  of  the  premises,  because  his  seizin  upon  the  hypothe- 
sis was  only  instantaneous.  It  becomes  necessary  to  ascertain  which 
of  these  estates  is  to  control  the  other,  when  they  become  united, 
in  order  to  see  which  of  them  dower  shall  follow;  because,  at  com- 
mon law,  which  is  the  law  of  this  State  in  this  particular,  dower  could 
not  be  taken  in  either  estate  alone. 

A  widow  of  a  trustee  shall  not  have  dower.  Robinson  v.  Cod/nan, 
1  Sum.  121 ;  Germond  v.  Jones,  2  Hill,  569;  Cooper  v.  Whitney f  3  Hill, 
101;  Coster  v.  Lorillard,  14  Wend.  314.  In  England  there  is  at  law 
no  dower  in  a  trust  estate,  whether  the  husband  have  himself  parted 
with  the  legal  title  before  marriage,  reserving  only  a  trust,  or  whether 
a  trust  estate  has  been  directly  limited  to  him  by  a  third  person. 
And  the  same  rule  applies  where  the  husband  purchases  an  estate 
in  the  name  of  a  trustee  who  acknowledges  the  trust  after  his  death. 
Ray  v.  Rung,  5  B.  &  Aid.  561;  2  Bl.  Com.  337;  1  Hill  on  Real  Prop. 
323.     So  that,  so  long  as  the  legal  and  equitable  estates  remained 


678       ESTATES    AS    TO    QUANTITY    AND    QUALITY.       [PT.  IV.   CH.  I. 

separate,  no  dower  could  be  claimed,  and  no  inchoate  right  of  dower 
could  be  acquired  on  either  side. 

But  where  both  estates  are  united  in  one  person,  one  must  merge 
in  the  other,  because  a  man  cannot  be  trustee  for  himself.  In  Good 
right  v.  Wells,  Douglass,  741,  the  question  arose  as  to  whether,  in  a 
case  of  this  kind,  "  the  equity  should  follow  the  law  or  draw  the  law 
after  it."  It  was  a  case  in  which  an  only  child  inherited  the  legal 
estate  in  lands  from  his  mother,  and  the  equitable  estate  from  his 
father;  and,  dying  without  issue,  the  estate  was  claimed  on  the  one 
side  by  his  legal  heirs  ex  parte  materna,  and  on  the  other  side  by 
those  ex  parte  pater  na;  and  it  was  held  that  the  equitable  estate 
should  merge  in  the  legal  and  that  both  should  follow  the  line 
through  which  the  legal  estate  descended;  the  whole  property  in 
that  case  going  to  the  heirs  on  the  part  of  the  mother. 

It  was  there  learnedly  argued  that,  before  the  statute  of  uses  the 
use  was  considered,  in  most  respects,  as  the  complete  ownership  of 
the  land,  that  the  estate  of  the  feoffee  was  subservient  to  the  cestu 
que  use,  and  that  the  former  could  do  nothing  to  defeat  the  interes 
of  the  latter,  unless  by  alienation  for  a  valuable  consideration  without 
notice;  that  the  statute  of  uses  completed  this  subserviency  by  con- 
solidating the  legal  estate  with  the  use,  or  by  merging  the  legal 
estate  in  the  equitable;  and  that  by  analogy  to  uses  thus  considered, 
trust  estates  had  been  and  should  be  held  to  be  the  solid  and  sub- 
stantial ownership  of  the  land,  and  the  trustee  the  mere  instrument 
of  conveyance;  that  where  a  party  holds  by  two  titles,  the  law  con- 
siders him  as  taking  by  the  best;  that  the  trust  estate,  being  the 
best,  must  control  the  legal  estate. 

But  the  court  held  otherwise,  deciding  that  the  legal  estate  was  the 
better  title,  and  that  the  equitable  title  was  merged  the  moment  the 
two  became  united  in  the  same  person;  that  the  legal  drew  after  it 
the  equitable  estate,  and  that  the  latter  was  lost  in  the  former;  so 
that,  upon  the  death  of  the  son,  the  person  in  whom  both  estates 
had  been  united,  the  estate  did  not  again  open,  and  that  the  trust 
could  not  again  be  revived. 

Lord  Mansfield,  in  delivering  his  opinion  in  the  case,  says:  "  For 
the  moment  both  [estates]  meet  in  one  person,  there  is  an  end  of 
the  trust.  He  has  the  legal  estate,  and  all  the  profits,  by  his  best 
title.  A  man  cannot  be  a  trustee  for  himself.  Why  should  the 
estates  open  upon  his  death?  What  equity  has  one  set  of  heirs 
more  than  another  ?  He  may  dispose  of  the  whole  as  he  pleases, 
and  if  he  does  not,  there  is  no  room  for  chancery  to  interpose, 
and   the    rule   of   law    must   prevail."     And   he  seems  to  conclude 


II.  3-]  LIFE   ESTATES:    DOWER.  679 

that  the  weight  of  opinion  and  argument  is,  that  the  legal  estate 
must  draw  the  trust  after  it. 

In  the  same  case,  Ashurst,  J.,  says  that  "  where  the  trust  and 
legal  estates  join,  they  shall  both  go  according  to  the  legal  estate." 
Buller,  J.,  also  says,  that,  "in  a  court  of  equity  it  has  never  been 
determined  that  an  heir  of  one  sort  can  hold  as  trustee  for  an  heir 
of  another  sort.  And  if  the  question  be  tried  in  a  court  of  law,  the 
principle  that,  where  two  titles  unite,  the  party  shall  be  in  of  the 
best,  prevails,  and  the  clear  fee  simple  estate,  the  legal-  interest, 
which  descends  from  the  mother  is  the  better  title.  The  trust,  in 
this  case,  was  merged  and  gone."  The  same  principle  was  sustained 
in  Doe  v.  Patt,  Douglass,  684,  and  afterwards  by  Lord  Thurlow,  in 
Wade  v.  Paget,  1  Brown,  C.  C.  364;  Phillips  v.  Bridges,  3  Ves. 
126;  Selby  v.  Alston,  3  Ves.  339;  Nicholson  v.  Halsey,  1  Johns. 
Ch.  417;  Gardner  v.  Astor,  3  Johns.  Ch.  53;  Hill  on  Real  Prop.  ch. 
24,  §  27. 

Upon  the  principle  deduced  from  these  authorities,  it  would  seem 
evident  that,  when  the  two  estates  were  united  in  the  plaintiff's  hus 
band,  the  trust  estate  became  at  once  merged  and  lost.  It  was  con- 
solidated into,  overshadowed  by,  and  swallowed  up  in  the  legal 
estate.  The  law  of  the  legal  estate  regulates  and  governs  its  descent 
and  distribution,  and  dower  must  be  taken  by  the  same  law. 

We  have  considered  the  question  as  though  here  had  been  origi- 
nally a  trust  estate,  created  by  deed  and  appearing  of  record;  and 
coming  to  the  conclusion  we  have  upon  that  supposition,  it  becomes 
unnecessary  to  inquire  farther  into  the  defendant's  case,  because  the 
facts  assumed  by  us  above  are  at  least  as  favorable  to  the  defendant 
as  any  that  can  be  made  out  of  the  agreed  case,  and  might  be  found 
to  be  much  more  so  upon  investigation,  though  on  that  subject  we 
express  no  opinion.  And  the  above  authorities  would  seem  to  be 
decisive,  also,  of  the  defendant's  rights  —  in  fact,  of  the  rights  of 
both  parties  —  not  only  at  law,  but  also  in  equity.  We  are  there- 
fore of  opinion  that  the  plaintiff  must  prevail  in  her  claim  for  dower 
in  the  whole  of  the  premises  described  in  her  declaration;  and 
judgment  must  be  rendered  for  the  plaintiff  accordingly,  and  for 
damages  for  detention,  to  be  fixed  according  to  the  provisions  of 
the  case. 


580      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

(e.)  Dower  in  -wild  lands. 

SCHNEBLY  v.  SCHNEBLY. 

26  Illinois,  116.  — 1S61. 

Petition  by  the  heirs-at-law  of  Henry  Schnebly  to  have  his  widow's 
dower  assigned  to  her.  There  were  ten  separate  parcels  of  land  of 
all  which  the  widow  was  entitled  to  be  endowed.  This  is  a  writ  of 
error  by  the  petitioners  to  review  a  judgment  approving  the  report 
of  the  commissioners. 

Walker,  J.  —  The  commissioners  appointed  by,  and  acting  under 
the  decree  of  the  court,  assigned  to  the  widow  as  her  dower  in  the 
various  tracts  embraced  in  the  decree,  the  E.  1-2  N.  W.  27,  9  N.  8 
E.,  and  88  acres  on  the  west  side,  part  of  the  northeast  quarter  of 
the  same  section.  These  premises  included  the  residence  and  home- 
stead of  the  husband  in  his  lifetime.  They  also  report  that  premises 
thus  allotted  are  one-third  in  value  of  all  the  lands  with  perfect  title, 
having  reference  to  the  quantity  and  quality.  It  is  urged  by  plain- 
tiffs in  error,  as  one  of  the  grounds  of  reversal,  that  wild,  unimproved 
and  unproductive  lands  are  not,  under  our  statute,  subject  to  dower. 
The  first  section  of  the  dower  act  provides  that  "  a  widow  shall  be 
endowed  of  one-third  part  of  all  the  lands  whereof  her  husband  was 
seized  of  an  estate  of  inheritance  at  any  time  during  the  marriage, 
unless  the  same  shall  have  been  relinquished  in  legal  form." 

By  this  provision  it  is  the  character  of  the  title,  or  rather  the 
nature  of  the  estate  held  in  the  land,  which  determines  the  right. 
It  is  not  the  accidental  condition  of  the  property  which  controls, 
but  the  interest  or  extent  of  the  title.  The  Legislature  has  not 
declared  that  the  widow  shall  be  endowed  of  all  improved  or  pro- 
ductive real  estate  of  which  the  husband  was  seized  during  the  mar- 
riage, but  it  is  of  all  the  lands  of  which  he  was  seized  of  an  estate  of 
inheritance.  And  in  making  this  provision,  the  general  assembly 
have  no  more  than  declared  the  common  law.  It  is  true  that  in 
giving  dower  in  equitable  estates  and  in  land  purchased  by  the  hus- 
band in  his  lifetime,  and  not  paid  for  until  after  his  death,  the  right 
has  been  enlarged;  but  as  such  estates  are  not  involved  in  this  case, 
there  is  no  occasion  for  their  discussion. 

There  9eem  to  be  obvious  reasons  for  the  enactment.     After  the 

ignment  of  dower,  the  widow  may  undeniably  use  and  enjoy  the 

portion  allotted   to  her  in  any  mode  she  may  choose,  provided  she 

-.hall   not  commit  waste.     She  may  reclaim  lands    that    have   been 

cultivated  and  abandoned;  she  may  reduce  prairie  land  to  culti- 

ati  mi,  and  in  are  timber  land.     And  no  one  will  deny  that  by 


II.  3-]  LIFE   ESTATES:    DOWER.  68l 

that  means  she  may  derive  profit  without  committing  waste.  These 
are  doubtless  sufficient  considerations  for  the  enactment.  But  be 
that  as  it  may,  we  have  no  hesitation  in  saying  that  the  Legislature 
designed  to  give,  and  has  given  the  widow  dower  in  unimproved  as 
well  as  in  improved  lands,  of  which  the  husband  was  seized  of  an 
estate  of  inheritance  during  the  marriage. 

It  is  likewise  urged,  that  the  statute  has  not  authorized  the  court 
through  commissioners  to  assign  dower  in  a  portion  of  lands  in  lieu 
of  dower  in  the  whole.  As  in  declaring  the  right,  our  statute  has 
only  enacted  the  common  law,  we  must  look  to  it  for  the  rules 
regulating  its  assignment,  unless  it  is  otherwise  provided  for  by  the 
act.  Park,  in  his  treatise  on  Dower,  p.  255,  says  that,  "  In  the 
simple  state  of  property  in  former  times,  it  is  probable  that  the  only 
provision  that  was  made  for  the  security  of  the  dowress  was,  by 
requiring  that  the  sheriff  should  assign  to  her  a  third  part  of  each 
existing  denomination  of  property.  Thus  he  was  bound  to  assign 
her  a  third  part  of  each  manor,  if  there  were  several;  or  a  third  part 
of  the  arable,  a  third  part  of  the  meadow,  and  a  third  part  of  the 
pasture."  And  it  is  said  in  Bac.  Abr.  374,  letter  D,  "  If  a  woman 
be  dowable  in  three  manors,  and  accept  of  the  heir  one  of  these 
manors  in  lieu  of  dower  in  all  of  the  rest,  this  is  good,  though 
against  common  right,  which  gives  her  but  the  third  part  of  each 
manor."  And  Roll's  Abridgment,  683,  is  referred  to  in  support  of 
the  doctrine.  We  thus  see  that  the  common  law,  or  common  right,  as 
it  is  sometimes  called  by  the  ancient  writers,  gave  to  the  widow  one- 
third  part  of  each  particular  tract.  While  this  is  true,  it  also  per- 
mitted the  heir  and  the  widow,  by  mutual  consent,  to  allot  a  specific 
tract  in  lieu  of  dower  in  several  parcels,  and  when  so  assigned,  the 
law  upholds  and  enforces  it  between  the  parties.  But  its  validity 
depended  alone  upon  the  agreement,  as  neither  could  be  compelled 
by  the  law  to  make  such  an  assignment. 

And  in  this  country,  the  courts,  so  far  as  we  have  found,  have 
adopted  the  same  rule.  Scott  v.  Scott,  1  Bay,  504;  Coulter  v.  Hol- 
land, 2  Harring,  330;  Sip  v.  Lamback,  2  Har.  N.  J.  442.  But  it  may 
be  that  cases  are  to  be  found  which  announce  a  different  rule, 
although  we  have  not  been  referred  to  them,  if  they  exist.  It  how- 
ever seems  to  us,  that  when  considered  upon  principle,  that  it  is  more 
reasonable,  just  and  convenient,  that  each  tract  should  bear  the 
burden  of  the  widow's  dower,  annexed  to  and  growing  out  of  it. 
If  the  dower  in  all  of  several  tracts  may  be  imposed  upon  one  or 
more,  to  the  relief  of  others,  it  might  be  made  to  operate  with  great 
injustice  to  purchasers  or  heirs.  In  case  of  purchasers  of  several 
tracts  without  any  relinquishment  by  the  widow,  it  would  be  highly 


682       ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

unjust  to  endow  her  out  of  the  portion  purchased  by  one,  and  to 
exempt  the  other.  It  would  be  equally  wrong  to  impose  the  whole 
of  the  widow's  dower  in  the  estate  upon  the  portion  of  one  heir, 
and  exempt  the  others.  If  this  might  be  done,  purchasers  would  be 
disinclined  to  pay  the  value  of  real  estate  at  sales  by  executors  and 
administrators,  of  real  estate  subject  to  the  widow's  dower.  And 
yet  they  have  no  power  to  compel  its  assignment. 

Again,  under  our  statute  this  widow's  dower  is  an  incident  to  the 
land  held  by  a  particular  description  of  title.  It  attaches  to  all  of 
the  lands  alike  held  by  that  description  of  title,  and  not  to  a  portion 
of  them.  By  the  marriage  the  right  attaches  to  the  lands  then  held, 
and  as  others  are  subsequently  acquired,  it  attaches  to  them.  And 
by  the  husband's  death  the  right  becomes  consummate,  as  it  origi- 
nally attached  to  each  separate  parcel,  and  we  are  aware  of  no 
statute  or  rule  of  the  common  law  that  will  permit  the  court  or  the 
commissioners  without  the  consent  of  the  parties,  to  release  one 
portion  from  the  burden  and  impose  it  upon  another.  If  the  parties 
choose  to  do  so,  they  have  the  unquestioned  right,  or  if  the  commis- 
sioners were  to  so  assign  it,  and  it  were  approved  by  the  court  with- 
out objection,  where  the  parties  were  not  under  disability,  or  if  by 
their  report  it  appeared  that  the  parties  in  interest  consented,  and 
it  were  not  disproved,  such  an  assignment  would  be  good.  But 
without  such  agreement  by  parties  capable  of  assenting,  when 
objected  to,  the  court  should  set  aside  the  report  and  refer  it  back 
to  the  same  or  other  commissioners. 

Ic  assigning  the  widow's  dower,  the  commissioners  should  so  allot 
it,  having  reference  to  quantity  and  quality,  that  her  portion  shall 
be  equal  in  its  yearly  value  or  income  to  one-third  of  the  yearly 
value  of  the  tract  from  which  it  is  taken.  They  should  not  consider 
the  intrinsic  or  cash  value,  but  the  yearly  income,  but  its  capacity  at 
the  time  for  production,  and  assign  to  her  such  a  portion  as  will  pro- 
duce one-third  of  that  value.  If  after  such  an  assignment  the  profits 
are  increased  by  her  expenditure  of  money  or  labor,  it  is  her  com- 
pensation for  the  expenditure. 

That  this  is  the  true  rule  seems  to  be  manifest  from  the  provisions 
of  the  28th  section  of  the  dower  act.  It  provides  that  in  case  the 
property  is  not  susceptible  of  a  division,  and  the  commissioners 
shall  so  report,  the  court,  shall  impanel  a  jury  and  ascertain  its 
yearly  value,  and  render  judgment  that  the  widow  shall  be  paid  on  a 
day  named,  one-third  of  the  amount  annually,  during  her  natural 
life.  This  provision  proceeds  upon  the  principle  that  it  is  one-third 
of  the  yearly  value  and  not  one-third  of  the  number  of  acres  or  the 
cash  value  of  the  land  of  which  she  is  to  be  endowed. 


II.   3-]  LIFE   ESTATES:     DOWER.  683 

For  the  reason  that  the  assignment  of  dower  in  this  case  was  not 
of  the  one-third  part  of  such  tract,  and  was  a  part  of  two  tracts  only, 
the  decree  of  the  court  below  affirming  the  report  of  the  commis- 
sioners must  be  reversed,  and  the  cause  remanded,  with  instructions 
to  refer  it  back  to  the  same  or  other  commissioners. 

Decree  reversed. 

CONNER  v.  SHEPHERD. 

15  Massachusetts,  164.  —  1818. 

Writ  of  dower.  Demandant's  husband  was  seized  during  coverture 
of  the  lands  in  question  and  conveyed  them  to  defendants.  The 
lands  when  conveyed  were,  and  still  are,  uncultivated  and  covered 
with  wood  and  timber. 

Parker,  C.  J.  —  Upon  this  question  we  have  had  considerable 
difficulty.  By  the  common  law,  the  widow  is  dowable  of  all  the  real 
estate  of  which  her  husband  was  seized  during  the  coverture,  with 
the  exception  only  of  a  castle  erected  for  public  defense,  of  a  com- 
mon in  gross,  and  some  other  kinds  of  estate  not  known  in  this 
country.  The  question  whether  forest,  parks,  and  other  property 
of  a  similar  nature,  are  also  exceptions,  seems  never  to  have  occurred ; 
probably  because  there  is  no  instance,  in  Great  Britain,  of  any  such 
property  held  separately  and  distinct  from  improved  and  cultivated 
estates. 

In  this  country,  on  the  contrary,  there  are  many  large  tracts  of 
uncultivated  territory  owned  by  individuals  who  have  no  intention 
of  reducing  them  to  a  state  of  improvement,  but  consider  them 
rather  as  subjects  of  speculation  and  sale,  or  as  a  future  fund  for 
their  posterity,  increasing  in  value  with  the  population  and  improve- 
ment of  the  country.  If  dower  could  be  assigned  in  estates  of  this 
nature  the  views  of  those  who  purchase  such  property  would  be 
obstructed;  and  an  impediment  to  their  transfer  would  be  created, 
and  in  many  instances  the  inheritance  would  be  prejudiced,  without 
any  actual  advantage  to  the  widow  to  whom  the  dower  might  be 
assigned.  For,  according  to  the  principles  of  the  common  law,  her 
estate  would  be  forfeited  if  she  were  to  cut  down  any  of  the  trees 
valuable  as  timber.  It  would  seem,  too,  that  the  mere  change  of 
the  property  from  wilderness  to  arable  or  pasture  land,  by  cutting 
down  the  wood  and  clearing  up  the  land,  might  be  considered  as 
waste;  for  the  alteration  of  the  property,  even  if  it  became  thereby 
more  valuable,  would  subject  the  estate  in  dower  to  forfeiture  —  the 
heir  having  a  right  to  the  inheritance  in  the  same  character  as  it  was 
left  by  the  ancestor. 


684      ESTATES   AS   TO  QUANTITY    AND    QUALITY.      [PT.  IV.  CH.  I. 

It  is  not  an  extravagant  supposition  that  lands  actually  in  a  state 
of  nature  may,  in  a  country  fast  increasing  in  its  population,  be 
more  valuable  than  the  same  land  would  be  with  that  sort  of  cultiva- 
tion which  a  tenant  for  life  would  be  likely  to  bestow  upon  it;  and 
that  the  very  clearing  of  the  land,  for.  the  purpose  of  getting  the 
greatest  crops  with  the  least  labor,  which  is  all  that  could  be 
expected  from  a  tenant  in  dower,  would  be  actually,  as  well  as 
technically,  waste  of  the  inheritance. 

There  would  seem,  then,  to  be  no  reason  for  allowing  dower  to 
the  widow  in  property  of  this  kind.  If  she  did  not  improve  the  land, 
the  dower  would  be  wholly  useless;  if  she  did  improve  it,  she  would 
be  exposed  to  dispute  with  the  heir,  and  to  the  forfeiture  of  her 
estate,  after  having  expended  her  substance  upon  it. 

But  this  is  not  all.  It  is  well  understood,  by  the  common  law, 
and  the  principle  has  been  repeatedly  settled  in  this  court,  that  the 
dower  of  the  widow  is  not  to  be  assigned,  so  as  to  give  her  one-third 
of  the  land  in  quantity,  but  so  that  she  may  enjoy  one-third  of  the 
rents  and  profits,  or  income,  of  the  estate.  Now,  of  a  lot  of  wild 
land,  not  connected  with  a  cultivated  farm,  there  are  no  rents  and 
profits.  On  the  contrary,  it  is  an  expense  to  the  owner,  by  reason 
of  the  taxes.  The  rule,  therefore,  by  which  dower  is  to  be  assigned 
cannot  be  applied  to  such  property. 

It  is  observable  also  that,  at  common  law,  the  right  of  damages 
for  detention  is  incident  to  the  right  of  dower;  from  which  it  may 
be  inferred  that  there  can  be  no  dower  in  land,  the  detention  of 
which  can  be  no  injury.  Now,  the  detention  of  wild  land  from  the 
widow  can  form  no  subject  of  damages.  Our  statute  has  adopted 
the  same  principle,  and  has  also  expressly  prohibited  strip  or  waste 
by  the  tenant  in  dower;  and  has  expressly  required  that  she  keep  the 
fences,  buildings,  etc.,  in  good  repair,  and  shall  so  leave  the  same. 
This  is  all  predicated  upon  the  supposition  that  the  estate  of  which 
a  widow  is  dowable,  may  be  retained  by  the  heir  to  her  pre- 
judice, has  fences  and  buildings  upon  it,  and  is  in  fact,  in  a  state  of 
actual  cultivation  and  improvement. 

Upon  the  whole,  seeing  no  possible  benefit  to  the  widow  from  an 
assignment  of  dower  in  such  property;  and,  on  the  contrary,  believ- 
ing that  it  would  operate  as  a  clog  upon  estates  designed  to  be  the 
subject  of  transfer;  and  finding  that  the  principles  upon  which  the 
estate  in  dower  rests  at  common  law  are  not  applicable  to  a  case  of 
the  kind  before  us,  —  we  feel  constrained  to  say  that  the  demandant 
cannot  maintain  her  present  action. 

This  case  seems  never  to  have  been  expressly  decided  before;  and 
yet  there  is  a  prevalent  opinion  among  lawyers  against  the  claim  of 


II.   3-J  LIFE   ESTATES:    DOWER.  685 

dower  in  such  property.     Possibly  the  point  may  have  been  decided 
before  the  publication  of  the  decisions  of  this  court  commenced. 

The  case  of  Sargent  et  al.  v.  Towne,  and  several  decisions  of  the 
court,  respecting  the  manner  in  which  widows  shall  be  endowed, 
when  land  has  been  alienated  by  the  husband,  have  a  bearing  towards 
the  decision  we  have  adopted.1 


(/.)  Estates  in  joint  tenancy  and  in  partnership. 

BABBITT  v.  BABBITT. 

41  New  Jersey  Equity,  392.  —  1886. 

The  Chancellor.  — This  is  a  suit  for  specific  performance  of  a 
contract  for  sale  of  real  estate  by  the  complainants  to  the  defendant. 
The  objection  made  to  the  title  is  that  the  wives  of  the  complain- 
ants' grantors,  who  held  the  title  as  joint  tenants  in  fee,  did  not 
join  in  the  conveyance  to  the  complainants,  and  it  is  urged  that  the 
wives,  who  are  living,  may  have  a  right  of  dower  in  the  property.  By 
the  common  law,  no  title  of  dower  attaches  where  the  husband  is 
seized  of  the  land  jointly  with  another  or  others.  This  is  owing  to 
the  nature  of  the  estate  of  joint  tenants.  The  possibility,  so  long  as 
the  joint  ownership  subsists,  that  the  estate  of  each  tenant  may  be 
wholly  defeated  by  his  dying  in  the  lifetime  of  the  other  or  others, 
prevents  the  attaching  of  the  right  of  dower  in  the  wives  of  any  of 
the  tenants,  except  the  survivor.  The  estate  which  the  husband 
must  have  to  entitle  his  wife  to  dower  is  one  in  severalty  or  in  com- 
mon. The  unity  of  interest  in  joint  tenancies,  each  tenant  is  seized 
per  my  et  per  tout,  prevents  the  admission  of  a  right  of  dower  of 
curtesy,  except  as  to  the  estate  of  the  survivor.  On  the  decease  of 
one  joint  tenant  the  survivor  holds  the  whole  property  under  and  by 
virtue  of  the  original  grant,  and  holds  no  part  of  it  in  anywise  under 
the  descent.     2  Cruise's  Dig.  444. 

We  have  not,  in  this  State,  changed  the  law  in  respect  to  dower  in 
such  estates  either  by  statute  or  legal  adjudication.  The  statute,  it 
is  true,  provides  that  the  wife  shall  have  dower  in  all  the  real  estate 
of  which  her  husband  or  any  other  to  his  use,  was  seized  of  an  estate 
of  inheritance  at  any  time  during  the  coverture,  to  which  she  shall 

1  See    Webb  v.   Townsend,   1    Pick.   (Mass.)  20,   infra,   p.  .     Also    White  v. 

Cutler,  p.  447,  supra.  This  is  often  called  the  "  New  England  Rule."  It  is 
now  the  statutory  rule  in  Mass.  and  N.  H.  But  there  may  be  dower  in  wild 
lands  used  in  connection  with  improved  lands  for  purposes  of  estovers,  pasture' 
etc.      Stevens  v.  Owen,  25  Me.  94.  —  Ed. 


686      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

not  have  relinquished  her  right  of  dower  by  deed  duly  executed  and 
acknowledged  (Rev.  p.  320),  and  an  estate  in  joint  tenancy  is,  in 
terms,  an  estate  of  inheritance,  but  the  right  of  survivorship  in  such 
estates  has  not  been  abolished.  Such  estates  are  recognized  by 
statute  (Rev.  p.  167,  §  78),  and  they  retain  their  common  law  char- 
acteristics. By  the  term  "  estate  of  inheritance  "  in  the  statute  is 
meant  an  estate  of  inheritance  in  severalty  or  in  common.  Estates 
in  joint  tenancy  are  not  included.     The  demurrer  will  be  overruled. 


BOPP  v.  FOX. 
63  Illinois,  540.  —  1872. 


Sheldon,  J.  —  This  was  a  petition  in  equity,  on  the  part  of  Cathe- 
rine Bopp,  for  the  assignment  of  dower  in  the  real  estate  of  her 
deceased  husband,  Louis  Bopp. 

The  claim  of  dower  is  in  the  one  undivided  one-fourth  part  of 
certain  premises,  by  virtue  of  a  conveyance  thereof  to  Frederick 
Weaver,  John  Schuchman,  Henry  Burmeister  and  Louis  Bopp,  on 
the  8th  day  of  March,  1865. 

The  defendants  set  up  in  resistance  to  the  claim  that  they  were 
purchasers  of  the  whole  of  the  premises  at  a  receiver's  sale  thereof, 
made  on  the  13th  of  August,  1870,  under  an  order  of  court  in  a  cer- 
tain suit  for  the  dissolution  of  a  copartnership  between  the  said 
Weaver,  Schuchman,  Burmeister  and  Bopp,  in  which  suit  the  said 
Weaver  and  Burmeister  were  complainants,  and  said  Schuchman  and 
Bopp  were  defendants;  and  that  the  said  premises  were  bought  with 
partnership  funds  for  partnership  purposes. 

The  only  questions  made  on  the  record  are,  whether  the  premises 
were  so  purchased  with  partnership  funds  for  partnership  purposes, 
and  if  so,  whether  they  were  subject  to  the  claim  of  dower.     *     *     * 

We  consider  this  was  essentially  a  purchase  with  partnership  funds 
for  partnership  purposes.  The  property  was  required  for  the  pay- 
ment of  partnership  debts,  and  was  duly  appropriated  to  that 
purpose. 

Under  such  circumstances,  does  a  right  of  dower  attach  in  favor 
of  the  widow  of  one  of  the  copartners,  in  whose  individual  name 
stood  the  legal  title,  to  the  undivided  one-fourth  part  of  the  land? 

It  is  a  well  known  rule,  governing  the  relation  of  partnership,  that 
partnership  property  must  first  be  applied  to  the  payment  of  partner- 
ship  debts,  and  that  the  true  and  actual  interest  of  each  partner  in 
the  partnership  stock  is  the  balance  found  due  to  him  after  the  pay- 
ment of  all  the  partnership  debts  and  the  adjustment  of  the  partner- 


II.  3-]  LIFE   ESTATES:    DOWER.  687 

ship  account  between  himself  and  his  copartners.  And  in  equity 
real  estate  forms  no  exception,  but  stands  on  the  same  footing,  in 
this  respect,  with  personal  property,  no  matter  in  whom  the  legal 
title  may  be  vested. 

Although  Louis  Bopp  took  the  legal  title  to  one-fourth  of  this  land, 
in  the  view  of  a  court  of  equity  he  never  had  any  beneficial  interest 
in  it  distinct  from  the  partnership  purposes,  but  he  took  it  clothed 
with  an  implied  trust  that  it  should  be  applied  to  the  payment  of  the 
partnership  debts  if  necessary,  and  his  widow  was  not  entitled  to  her 
dower  until  this  trust  was  fully  executed  and  fulfilled. 

These  views  and  principles  we  regard  as  just,  and  as  amply  sus- 
tained by  the  great  weight  of  authority. 

For  a  full  consideration  of  the  subject  and  authorities  bearing 
upon  it,  we  refer  to  Buchan  v.  Sumner,  2  Barb.  Ch.  R.  165;  Dyer  v. 
Clark,  5  Mete.  562;  Howard  v.  Priest,  Id.  582;  Collyer  on  Part., 
Perkins'  Ed.  123    et  seq.,  and  notes. 

It  was  supposed  in  the  argument  to  make  a  difference  that  there 
were  no  partnership  debts  existing  at  the  time  the  land  was  pur- 
chased, but  we  find  no  such  limitation  of  the  rule.  The  title  was 
taken  by  Bopp  chargeable  not  only  for  the  payment  of  the  partner- 
ship debts  existing  at  the  time  of  the  purchase,  but  for  the  payment 
of  any  partnership  liability  that  might  be  found  to  exist  at  the  time 
of  winding  up  the  partnership  concerns. 

The  interest  of  Louis  Bopp  in  the  land  having  been  applied  to  the 
purpose  of  the  implied  trust  upon  which  it  was  taken  —  the  payment 
of  the  partnership  debts  if  necessary  for  that  purpose  —  his  widow 
is  not  entitled  to  dower. 

The  court  below  should  have  dismissed  the  petition,  instead  of 
allowing  dower,  as  it  did,  in  the  land,  exclusive  of  the  mill 
improvements.  Decree  reversed. 


(4.)  Barring  Dower.1 
(a.)  Conveyance  of,  or  charge  on,  land  by  intended  husband  before  the  marriage. 

TRUSTEES  OF  THE  POOR  v.   PRATT. 

10  Maryland,  5.  —  1856. 

Mason,  J.,     *     *     *     delivered  the  opinion  of  the  court. 
This  is  an  action  at  law,  for  dower,  instituted  by  the  appellee. 
The  prominent  and  controlling  question  of  the  case  is,  whether  a 
sale  of  real  estate,  under  an  execution  upon  a  judgment  rendered 

1  Under  this  head  are  considered  the  classes  of  cases  in  which  dower  never 
attaches;  under  (5}  below  those  cases  in  which  dower  is  defeated  after  it  has 
once  attached.  —  Ed. 


688      ESTATES   AS    TO    QUANTITY    AND    QUALITY.      [PT.  IV.  CH.  I. 

against  a  party  prior  to  his  marriage,  would  defeat  the  claim  of  his 
widow  to  dower? 

This  question  is  conclusively  settled,  upon  authority,  in  the 
affirmative.  Kent,  in  his  Commentaries,  4th  vol.,  page  50,  thus 
states  the  law:  "As  a  general  principle,  it  may  be  observed  that 
the  wife's  dower  is  liable  to  be  defeated  by  every  subsisting  claim  or 
incumbrance,  in  law  or  equity,  existing  before  the  inception  of  the 
title,  and  which  would  have  defeated  the  husband's  seisin." 

The  same  doctrine  is  more  broadly  affirmed  in  the  case  of  Greene 
v.  Greene,  1  Ohio  Rep.  542.  In  speaking  of  the  widow's  right  to 
dower,  Judge  Sherman  says:  "  Her  estate  is  but  part  of  his,  is 
derived  from  him,  and  must  be  subject  to  all  incumbrances  existing 
against  it  at  the  time  of  the  marriage,  or  the  acquisition  by  the 
husband." 

The  same  doctrine  is  announced  in  the  case  of  Scott  v.  Howard,  3 
Barb.  Rep.  319,  and  also  in  our  own  chancery  court,  in  the  case  of 
Mantz  v.  Buchanan,  1  Md.  Ch.  Dec.  202,  as  well  as  a  number  of 
other  well  adjudged  cases. 

But  the  soundness  of  this  doctrine  seems  not  to  be  denied  by  the 
appellee's  counsel,  but  it  is  contended,  that  such  a  defense  cannot 
be  resorted  to  in  action  at  law,  but  is  only  availing  in  equity,  if  it 
can  be  relied  on  at  all. 

We  think  the  contrary  is  settled  by  the  General  Court  of  this 
State,  in  the  case  of  Lane  v.  Gover,  3  Har.  &  McH.  394.  That  was 
a  case,  like  the  present,  at  law,  and  the  court  permitted  a  sale  under 
a  lien  subsisting  prior  to  marriage,  to  defeat  the  claim  of  the  widow 
to  dower,  and  the  mere  circumstance  that  the  lien  bound  the  land  in 
the  lifetime  of  the  husband's  ancestor,  does  not  affect  the  principle, 
as  the  appellee's  counsel  supposes,  that  such  a  defense  would  be 
availing  at  law.1 


Campbell,  J.,  in  BROWN  v.  BRONSON. 

35  Michigan,  415.  —  1SS7. 

The  bill  in  this  case  was  filed  by  the  widow  of  Henry  B.  Brown, 
deceased,  to  recover  her  dower  of  certain  property  in  Big  Rapids, 
Mi  costa  county,  which  Brown  was  claimed  to  have  conveyed  to  the 
defendants,  who  were  his  children,  and  would  have  been  his  heirs-at- 
law  of  any  property  which  he  owned  at  his  death.  This  deed  pur- 
ported to  have  been  made  September  26th,  187 1,  two  days  before 
Brown's  marriage  with  complainant.     The  bill  claimed   that  if  the 

■See  N.  Y.  R.  P.  L.  §  172.  —  Ed. 


II.  3-]  LIFE   ESTATES  :     DOWER.  689 

deed  was  genuine  it  was  in  fraud  of  complainant,  but  disputed  its 
genuineness  and  delivery. 

Both  parties  to  the  marriage  were  beyond  middle  life,  and  had 
grown-up  children  at  the  time.  The  defendants  were  children  of 
Brown  by  a  former  wife.  They  claimed  that  the  deed  was  delivered 
and  intended  to  operate  at  once,  and  that  it  was  made  in  fulfilment 
of  a  trust  in  their  favor,  the  land  being  asserted  to  have  been  pur- 
chased with  the  proceeds  of  property  held  in  trust  for  them  from 
their  mother's  estate.     *     *     * 

We  are  satisfied  that  if  the  deed  had  been  executed  and  delivered 
at  the  time  of  its  date,  it  would  have  been  a  legal  fraud  on  com- 
plainant, under  the  rule  in  Cranson  v.  Cranson,  4  Mich.  R.  230.  And 
assuming  all  that  is  claimed  for  defendants  on  the  facts,  the  land  was 
then  owned  by  Henry  B.  Brown  in  his  own  right,  and  free  from  any 
trust  whatever.      *     *     * 

In  bringing  about  the  marriage,  Brown  had,  and  was  evidently 
intended  to  have,  credit  for  owning  the  premises  in  controversy. 
The  deed  was  not  made  public,  and  was  unquestionably  intended  to 
prevent  the  dower  interest  of  complainant  from  attaching,  — if  the 
deed  itself  was  really  made  operative.  This  was  a  legal  fraud,  and 
could  not  lose  that  character  by  reason  of  any  desire  to  carry  out  a 
previous  purpose,  concealed  from  complainant  and  the  public,  and 
continuing  concealed  during  the  remainder  of  Brown's  life. 


(b.)  Ante-nuptial  settlements  or  agreements  intended  to  bar  dower} 

VINCENT  v.  SPOONER. 

2  Cushing  (Mass.),  467.  —  1848. 

Fletcher,  J.  — This  was  a  suit  by  the  demandant,  as  the  widow 
of  Isaac  Vincent,  to  recover  dower  in  a  certain  messuage,  of  which 
the  tenant,  as  the  executor  of  Vincent,  is  in  possession.  It  is 
admitted  that  the  demandant  was  the  lawful  wife  of  Vincent;  that 
during  the  coverture  he  was  lawfully  seized  of  the  premises  described 
in  the  writ,  and  died  seized  thereof,  and  that  the  demandant's 
demand  to  have  dower  assigned  to  her  therein  was  duly  made  before 
the  commencement  of  this  suit.  The  tenants  contend  that  this  suit 
cannot  be  maintained,  for  the  reason  that,  prior  to  the  demandant's 
intermarriage  with  Isaac  Vincent,  she  duly  executed  an  ante-nuptial 
contract  with  him  and  one  Valentine  Bradford,  as  trustee,  by  the 
terms  of  which  she  accepted  a  certain  pecuniary  provision  therein 


1  Sec  N.  Y.  R.  P.  L.  §§  177-179,  182.  —Ed. 

LAW  OF  PROP.  IN  LAND  —  44 


69O      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

made  for  her  out  of  the  estate  of  her  intended  husband  in  lieu  of 
dower. 

It  appeared  that  previous  to  the  marriage,  an  indenture  between 
Isaac  Vincent,  of  the  first  part;  Valentine  Bradford,  of  the  second 
part,  and  the  demandant,  by  her  then  name  of  Sarah  T.  Cushman, 
of  the  third  part,  was  executed,  by  which  Vincent  covenanted  with 
Bradford,  that  if  the  marriage  took  place,  and  the  plaintiff  survived 
him,  he  would  cause  to  be  paid  and  secured  to  Bradford,  by  his  last 
will  or  otherwise,  the  sum  of  one  thousand  dollars,  to  be  paid  within 
ten  months  after  his  decease,  and  would  also  cause  to  be  paid  or 
secured  to  Bradford  the  further  sum  of  five  hundred  and  fifty  dollars, 
to  be  paid  to  him  yearly,  during  the  widowhood  of  the  demandant, 
to  be  paid  over  to  her  instead  and  in  satisfaction  of  dower,  and  of  all 
distributive  share  in  his  personal  estate.  Bradford  covenanted  faith- 
fully to  execute  the  trusts,  and  the  demandant  covenanted  and 
agreed,  that  the  sum  of  one  thousand  dollars  being  provided  to  be 
paid  and  actually  paid,  and  an  annual  sum  of  five  hundred  and  fifty 
dollars  being  secured  and  provided  to  be  paid,  should  be  in  full 
satisfaction  and  bar  of  her  dower  in  his  estate,  and  should  also  be  a 
bar  to  her  claiming  or  having  any  part  of  his  personal  estate. 

Isaac  Vincent  deceased,  having  made  his  last  will  and  testament, 
of  which  the  tenant  was  duly  appointed  executor.  Upon  the  tenant's 
assuming  the  trust  of  executor,  he  duly  notified  the  demandant  and 
Bradford,  the  trustee,  of  his  readiness  to  perform  all  the  stipulations 
of  the  ante-nuptial  contract.  Within  ten  months  after  the  decease 
of  Vincent,  the  tenant  paid  Bradford,  the  trustee,  the  sum  of  one 
thousand  dollars,  which  was  accepted  by  him  and  tendered  to  the 
demandant. 

Within  the  ten  months  also,  the  tenant  executed  and  delivered  to 
Bradford  a  bond,  with  sufficient  sureties,  for  the  faithful  and  prompt 
payment  of  the  annuity  of  five  hundred  and  fifty  dollars  during  the 
widowhood  of  the  demandant,  which  bond  was  also  fully  secured  by 
mortgage;  and  the  bond  and  mortgage  were  accepted  by  Bradford, 
as  such  trustee,  as  sufficient  security  for  the  payment  of  the  annuity. 

Within  one  year  from  the  decease  of  Vincent,  the  tenant  paid  the 
trustee  the  sum  of  five  hundred  and  fifty  dollars,  pursuant  to  the 
ante-nuptial  contract,  which  was  also  accepted  by  the  trustee  and 
tendered  to  the  demandant.  Both  sums,  so  tendered  to  the 
demandant,  ami  not  accepted  by  her,  have  been  specially  deposited 
in  bank. 

No  reference  was  particularly  made  in  the  will  of  Isaac  Vincent  to 
the  ante-nuptial  settlement,  but  a  general  deduction  was  therein 
given  for  the  payment  of  debts  and  the  performance  of  obligations. 


II.  3-]  LIFE   ESTATES:     DOWER.  69I 

At  common  law,  a  jointure  made  to  a  wife  before  or  after  marriage 
was  not  bar  to  her  dower.  By  the  statute  of  27  Henry  8,  c.  10,  §  6, 
which  had  always  been  in  force  here,  before  our  revised  statutes,  no 
jointure  is  a  bar  of  dower,  unless  it  be  a  freehold  estate  in  lands, 
tenements,  or  hereditaments,  for  the  life  of  the  wife  at  least,  and 
which  is  to  commence  and  take  effect,  in  possession  or  profit, 
immediately  on  the  husband's  death.  The  demandant's  action, 
therefore,  would  not  be  barred  by  the  marriage  settlement,  either  at 
common  law,  or  by  the  statute  of  27  Henry  8,  c.  10.  The  defense 
to  the  action,  therefore,  rests  wholly  on  the  Revised  Statutes,  c.  60, 
§§  8,  9.  The  eighth  section  of  that  chapter  is  taken  mostly  from 
the  statute  of  27  Henry  8,  c.  10.  The  provision  as  to  the  assent  of 
the  wife,  and  the  mode  of  signifying  her  assent  when  she  is  under 
age,  is  adopted  from  the  revised  code  of  New  York.  The  ninth  sec- 
tion is  also  adopted  from  the  New  York  Code.  By  this  latter  section 
it  is  provided,  that  any  pecuniary  provision  that  may  be  made  for  the 
benefit  of  the  intended  wife,  and  in  bar  of  her  dower,  shall,  if 
assented  to  by  her,  as  provided  in  the  preceding  section,  bar  her 
right  of  dower  in  all  the  lands  of  her  husband.  In  regard  to  this 
section,  the  commissioners  for  revising  the  statutes  say:  "  The 
ancient  distinction  between  real  and  personal  estates  is  not  much 
regarded  by  our  present  laws  and  usages  as  it  will  often  be  found 
more  convenient,  and  probably  quite  as  secure  for  the  widow,  to  have 
her  income  payable  out  of  public  stocks,  or  other  personal  estate,  as 
to  have  it  depend  on  the  rents  of  real  estate."  The  only  question 
in  the  present  case,  therefore,  is  whether  by  the  ante-nuptial  con- 
tract any  pecuniary  provision  was  made  for  the  benefit  of  the 
demandant,  the  intended  wife,  in  lieu  of  dower,  and  assented  to  by 
her  in  the  manner  provided  by  the  statute.  If  such  provision  was 
made  and  assented  to  then,  by  force  of  the  statute,  it  bars  her  right 
of  dower,  and  she  cannot  maintain  this  action.  If  no  such  provision 
was  made  and  accepted,  then,  of  course,  she  is  entitled  to  her  dower, 
and  this  action  is  well  brought. 

On  the  part  of  the  demandant,  it  is  maintained,  that  no  such  pro- 
vision was  in  fact  made ;  that  by  the  marriage  contract  it  was  optional, 
on  the  part  of  the  husband  whether  he  would  pay  or  secure  to  the 
demandant  the  sums  of  money  mentioned;  that  he  was  under  no 
absolute  obligation  to  do  so,  and  in  fact  did  not  cause  the  sum  of 
money  mentioned  to  be  paid  or  secured  by  his  last  will  or  otherwise, 
according  to  the  provisions  of  the  marriage  settlement;  and,  there- 
fore, that  the  demandant  is  not  barred  of  her  dower,  which  could 
only  be  effected  by  actually  paying  and  securing  the  money,  as  pro- 
vided in  the  marriage  contract. 


692      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CM.  E. 

These  positions,  on  the  part  of  the  demandant,  if  well  sustained 
in  fact,  would  no  doubt  establish  her  claim.  But  the  facts  by  no 
means  warrant  or  sustain  these  positions.  By  the  marriage  settle- 
ment, the  husband  had  no  option  or  election,  whether  he  would  or 
would  not  pay  and  secure  the  sums  stipulated.  He  absolutely  and 
unconditionally  covenanted  with  the  trustee,  that  he  would  by  his 
last  will  or  otherwise  cause  to  be  paid  and  secured,  for  the  intended 
wife,  the  sums  stipulated.  The  demandant  expressly  assented,  that 
such  sums  being  paid  and  secured,  should  be  in  bar  of  her  dower. 
The  husband  covenanted,  that  he  would  by  his  last  will  or  otherwise 
cause  the  money  to  be  paid  and  secured.  He  made  no  express  or 
particular  provision  by  his  will.  But  it  was  not  necessary  that 
provision  should  be  made  by  will.  Any  other  mode  was  just  as 
effectual.  All  that  this  marriage  contract  required,  and  all  that  the 
statute  requires,  is,  that  the  pecuniary  provision,  which  the  intended 
wife  assents  to  instead  of  dower,  should  be  actually  and  effectually 
secured  to  her.  In  the  present  instance,  the  indenture,  constituting 
the  marriage  contract,  was  of  itself  a  complete  provision  within  the 
statute,  and  clearly  fulfilled  and  accomplished  the  covenants  on  the 
part  of  the  husband.  This  indenture  absolutely  bound  the  husband 
and  his  estate,  and  could  be  fully  enforced  against  the  latter  in  the 
hands  of  his  executor.  As  there  was  ample  estate,  the  husband  did, 
therefore,  in  fulfillment  of  his  covenant  to  cause  the  money  to  be 
paid  and  secured  by  his  will  or  otherwise,  cause  it  actually  to  be 
done  by  this  indenture  itself.  In  fact,  the  executor,  admitting  his 
liability,  has  fulfilled  the  covenant  of  the  husband,  to  the  letter,  by 
paying  and  securing  to  the  trustee,  for  the  benefit  of  the  wife,  the 
sums  which  she  assented  to  take  in  lieu  of  dower.  The  case,  there- 
fore, is  clearly  within  the  statute  and  the  demandant's  claim  of 
dower  is  barred  by  the  pecuniary  provision  made  for  her  benefit,  and 
assented  to  by  her;  and,  consequently,  according  to  the  agreement 
of  the  parties,  a  nonsuit  must  be  entered.1 


(r.)  Alienage  of  wife. 

The  Chancellor  in  PRIEST  v.  CUMMINGS. 

20  Wendell  (N.  Y.),  338.  —  1838. 

I  have  no  doubt  upon  the  question,  as  to  the  regularity  and 
validity  of  the  naturalization  of  the  defendant  in  error  in  1829. 
The   fact    that  she    was  then  a  feme   covert    was  no  objection,    as 

1  See  §§  179-182  N.  Y.  R.  P.  L.  —  Ed. 


II.  3-]  LIFE    ESTATES:    DOWER. 

neither  married  women  or  infants  are  excluded  from /the  benefit 
of  the  acts  of  Congress  on  this  subject.  The  fact  that  the  statute 
makes  the  naturalization  of  the  father,  in  certain  castas,  enure  to 
the  benefit  of  his  infant  children,  does  not  preclude  infants  them- 
selves from  applying  whenever  it  may  be  necessary;  and  as  the 
general  language  of  the  naturalization  acts  include  all  free  white 
persons,  femes  covert  and  infants,  if  they  have  sufficient  capacity  to 
understand  their  rights  and  the  nature  and  obligation  of  an  oath, 
may  be  naturalized. 

I  cannot  admit,  however,  that  the  effect  of  naturalization 
under  the  general  acts  of  Congress,  which  have  not  declared  what 
shall  be  the  effect  of  such  naturalization,  can  retroact  so  as  to  divest 
rights  which  have  been  acquired  by  others  previous  to  such  naturali- 
zation. It  is  said  by  Coke,  and  other  elementary  writers,  that  if  a 
man  take  an  alien  to  wife,  and  afterwards  aliens  his  land,  and  then 
the  wife  is  made  a  denizen,  and  the  husband  afterwards  dies,  she 
shall  not  be  endowed,  because  her  capacity  and  possibility  to  be 
endowed  came  subsequent  to  the  marriage  by  the  act  of  denization; 
but  that  it  is  otherwise  where  she  is  naturalized  by  act  of  Parlia- 
ment, Co.  Litt.  33,  b. ;  Clancy,  202;  and  it  is  supposed  that  the 
effect  of  a  naturalization  under  an  act  of  Congress  must  necessarily 
have  the  same  effect  as  naturalization  by  act  of  Parliament.  That 
a  naturalization  here  has  the  effect  to  give  to  the  naturalized  citizen 
inheritable  blood,  so  as  to  enable  him  to  take  by  descent  from 
another  citizen,  as  well  as  to  acquire  lands  by  purchase,  I  have  no 
doubt.  It  probably  would  also  have  the  effect  to  give  to  the 
naturalized  wife  a  capacity  to  take  an  inchoate  right  of  dower  in 
lands,  of  which  the  husband  was  seised  in  fee  at  the  time  of  her 
naturalization,  so  as  to  give  her  the  right  of  dower  therein  at  his 
death.  To  that  extent  the  husband  takes  his  land,  subject  to  the 
right  of  his  wife  to  acquire  a  title  to  dower  therein,  by  a  subsequent 
naturalization  under  a  law  which  was  in  existence  at  the  time  of  his 
purchase,  or  marriage;  and  as  the  wife  after  her  naturalization  has 
an  inchoate  right  of  dower  in  such  lands,  of  which  she  cannot  be 
deprived  except  by  her  own  consent,  a  subsequent  purchaser  from 
the  husband  who  neglects  to  procure  her  release,  take  the  land  sub- 
ject to  such  right.  But  where  the  husband  had  parted  with  all  his 
interest  in  the  land  before  his  wife  had  the  capacity  to  take  even  an 
inchoate  interest  therein,  which  could  by  any  possibility  be  released 
while  the  wife  was  an  alien,  it  would  be  contrary  to  every  principle 
of  justice  and  common  sense  to  give  her  the  right  to  divest  or  impair 
the  title  of  the  purchaser,  by  her  subsequent  act  of  naturalization. 
The  same  objections  would  also  exist  to  the  retroactive  operation  of 


694      ESTATES   AS    TO    QUANTITY   AND    QUALITY.      [PT.  IV.  C 1 1 .  I. 

a  naturalization,  where  the  person  thus  naturalized  had  previously 
been  passed  over  in  the  descent  of  real  estate,  in  favor  of  a  more 
remote  lineal  or  collateral  heir  who  was  not  an  alien.  In  such  cases, 
if  the  principle  of  retroaction  contended  for  here,  should  be  adopted 
and  established,  the  estate  would  to  a  certain  extent  be  rendered 
inalienable  in  the  hands  of  the  owner  thereof.  In  the  first  case, 
the  possible  right  of  the  alien  wife  could  not  be  extinguished  by  any 
release  or  common  law  conveyance;  and  in  the  last  case,  no  one 
could  safely  purchase  from  the  more  remote  heir,  upon  whom  the 
inheritance  had  descended,  until  all  the  intermediate  alien  heirs  and 
their  descendants,  who  were  in  existence  at  the  time  of  the  descent 
cast,  were  dead,  as  it  could  not  until  then  be  known  to  the  purchaser 
whether  any,  and  if  any,  which  of  them  would  become  naturalized. 

The  effect  of  a  statutory  naturalization  in  England,  in  overreaching 
previous  vested  rights,  depends  upon  the  omnipotence  which  has 
been  ascribed  to  an  act  of  Parliament ;  in  which  at  some  of  the  earlier 
periods  of  English  history,  a  due  regard  was  not  always  paid  to  the 
rights  of  third  persons  who  had  not  petitioned  for  the  passing  of 
the  act.     *     *     * 

I  conclude,  therefore,  that  the  naturalization  of  the  defendant  in 
error  had  the  same  effect  as  to  the  rights  of  property,  as  letters,  of 
denization  had  by  the  common  law,  and  the  same  effect  as  to  all 
other  rights  as  an  act  of  Parliament  giving  her  all  the  rights  of  a 
natural  born  subject,  and  without  any  special  provisions  to  give  it  a 
retrospective  operation.  She,  therefore,  had  from  that  time  the 
capacity  to  take  an  estate  in  dower,  of  and  in  any  lands  of  which  the 
husband  was  then  seised  of  an  inheritable  estate;  to  take  lands  by 
devise  or  descent  from  any  person  capable  of  conveying  or  trans- 
mitting lands  in  that  manner  to  her;  and  to  take  any  other  interest 
in  real  estate  by  gift  or  otherwise  to  herself,  and  to  sell,  alienate,  or 
bequeath  the  same,  or  transmit  the  same  to  such  of  her  heirs  as  were 
capable  of  taking  by  descent,  as  fully  as  a  natural  born  citizen  might 
do,  but  not  otherwise.  Her  naturalization,  however,  did  not  retro- 
spect so  as  to  deprive  the  mortgagees  of  her  husband,  or  those 
claiming  under  them,  of  any  right  or  interest  in  his  lands  which  they 
had  acquired  previous  to  her  naturalization!1 

1  See  Burton  v.  Burton,  1  Abb.  Ct.  App.  Dec.  271  for  construction  of  certain 
statutes,  and  see  subject  of  "aliens  "  in  Part  V,  infra.  —  Ed. 


II.  3-]  LIFE    ESTATES:     DOWER.  695 

(5.)  Defeating  Dower. 
(a.)  Elopement  and  adultery.      Divorce. 

REYNOLDS  v.   REYNOLDS. 

24  Wendell  (N.  Y.),  193.  —  1840. 

By  the  Court,  Bronson,  J.  —  Adultery  in  the  wife  was,  at  the  com- 
mon law,  no  bar  to  her  claim  for  dower,  not  even  where  a  divorce 
followed,  unless  it  was  a  divorce  a  vinculo.  2  Inst.  436;  Co.  Litt. 
32,  a.,  and  note  194;  2  Black.  Conn.  130;  4  Kent's  Comm.  52,  note  c, 
54.  But  by  the  statute  Westm.  second,  13  Ed.  1,  ch.  34,  it  was 
enacted,  that  "  if  a  wife  willingly  leave  her  husband  and  go  away, 
and  continue  with  her  advouterer,  she  shall  be  barred  forever  of 
action  to  demand  her  dower  that  she  ought  to  have  of  her  husband's 
lands,  if  she  be  convicted  thereupon,  except  that  her  husband  will- 
ingly, and  without  coercion  of  the  church,  reconcile  her,  and  suffer 
her  to  dwell  with  him;  in  which  case,  she  shall  be  restored  to  her 
action."  2  Inst.  433.  This  statute  was,  in  substance,  re-enacted  in 
this  State  in  1787,  1  Greenl.  294,  §  7;  and  it  remained  in  force 
down  to  the  revision  of  the  laws  in  1830.  1  R.  L.  of  1801,  p.  53, 
and  1  R.  L.  58.  Under  this  statute,  there  can  be  little  doubt  that 
the  plaintiff  forfeited  her  claim  to  dower  by  living  in  adultery  with 
Haskins,  without  being  afterwards  reconciled  to  her  husband. 

The  provocation  which  she  had  to  depart  will  not  aid  her.  The 
words  of  the  statute  Westm.  2,  are,  "  if  a  wife  willingly  leave  her 
husband,  and  go  away,  and  continue,"  etc.  Lord  Coke,  in  his  com- 
mentary, says:  "Albeit  the  words  of  this  branch  be  in  the  con- 
junctive, yet  if  the  woman  be  taken  away  not  sponte,  but  against  her 
will,  but  after  consent,  and  remain  with  the  adulterer  without  being 
reconciled,  etc.,  she  shall  lose  her  dower;  for  the  cause  of  the  bar 
of  her  dower  is,  not  the  manner  of  her  going  away,  but  the  remain- 
ing with  the  adulterer  in  avowtry,  without  reconciliation;  "  and  so 
if  she  go  away  with  her  husband's  consent  and  agreement  with 
another  man,  and  afterwards  commit  adulter)',  she  shall  be  barred. 
And  Coke  cites  what  he  calls  "  a  rare  and  strange  case,"  from  the 
Parliament  roll,  30  Ed.  1,  which  was  only  seventeen  years  after  the 
statute  was  passed.  In  that  case,  John  de  Camoys,  by  deed, 
delivered  and  committed  his  wife  Margaret  to  the  Lord  William 
Paynel,  and  did  grant  and  confirm  that  the  said  Margaret  should  be 
and  remain  with  said  Lord  William  according  to  his  will.  After  the 
death  of  her  husband,  the  wife  demanded  her  dower,  but  it  was 
adjudged  against  her,  on  the  ground  of  the  adultery  with  Paynel. 
2  Inst.  435;  Dyer,    107  a.,    note;  Bacon's  Abr.  Dower   F.     In   Coot 


696      ESTATES   AS    TO    QUANTITY   AND    QUALITY.      [PT.  IV.   CH.  I. 

v.  Berty,  12  Mod.  232,  in  dower,  the  defendant  pleaded  the  elope- 
ment of  the  wife;  she  replied  that  the  husband  had  bargained  and 
sold  her  to  the  adulterer;  but  the  replication  was  held  bad.  In  the 
recent  case  of  Hethrigton  v.  Graham,  6  Bing.  135,  it  was  held  that 
adultery  was  a  bar,  although  committed  after  the  husband  and  wife 
had  separated  by  mutual  consent.  Tindal,  Ch.  J.,  concludes  a 
review  of  the  authorities,  by  saying  that  they  "  place  the  forfeiture 
of  the  dower  upon  the  fact  of  a  living  from  the  husband  in  adultery, 
and  not  upon  the  circumstances  of  the  elopement."  I  do  not  find 
that  this  doctrine  has  been  departed  from. 

Although  the  plaintiff  had  good  cause  for  leaving  her  husband,  yet 
the  subsequent  adultery,  had  the  husband  died  while  the  act  of  1787 
remained  in  force,  would  clearly  have  barred  this  action  for  dower. 
The  effect  of  the  present  statute  upon  her  claim  remains  to  be 
considered. 

In  1830,  the  act  of  1787  was  repealed  and  after  declaring  that  a 
widow  shall  be  entitled  to  dower,  a  new  provision  was  made  in  the 
following  words:  "  In  case  of  divorce  dissolving  the  marriage  con- 
tract, for  the  misconduct  of  the  wife,  she  shall  not  be  endowed." 
1  R.  S.  741,  §  8.1  Under  this  statute  the  adultery  is  not  enough. 
It  must  be  followed  by  a  divorce  dissolving  the  marriage  contract. 
This  has  brought  us  back  to  the  common  law,  as  it  stood  before  the 
statute  of  13  Ed.  I.,  for  we  have  already  seen,  adultery  did  not  work 
a  forfeiture  at  the  common  law.  And  as  to  a  divorce  a  vinculo,  that 
always  put  an  end  to  the  claim  of  dower;  for  although  it  was  not 
necessary  that  the  seisin  of  the  husband  should  continue  during  the 
coverture,  it  was  necessary  that  the  marriage  should  continue  until 
the  death  of  the  husband.  Co.  Litt.  32,  a.;  2  Bl.  Comm.  130;  2 
Kent's  Comm.  52,  c,  p.  54.  The  statute  bar  for  the  mere  act  of 
adultery,  which  had  existed  for  more  than  five  centuries  and  a  half, 
was  blotted  out  by  the  repeal  of  the  act  of  1787  —  the  British 
statutes  not  being  in  force  in  this  State;  and  the  8th  section  of  the 
act  of  1830  has  added  nothing  to  the  law  as  it  would  have  stood  had 
tne  Legislature  stopped  with  a  simple  repeal  of  the  act  of  1787. 

How,  then,  stands  this  case?  Prior  to  1830,  the  plaintiff  was  under 
a  statute  disability,  and  had  her  husband  died  at  that  time  she  could 
not  have  taken  her  dower.  But  seven  years  before  the  death  of  her 
husband,  the  disability  was  removed  by  the  repeal  of  the  statute  — 
there  was  no  longer  any  bar,  and  I  am  unable  to  discover  any  valid 
objection  to  her  claim.  She  is  able  to  establish  all  the  elements  of 
a  perfect  title  to  dower,  to  wit,  a  lawful  marriage,  and  the  seisin  and 

1  1.    N.  V.  R.  P.  L.,  §§  176  and  186;  and  see  §  1760  Code  Civ.  Pro.  —  Ed. 


II.  3]  LIFE   ESTATES:     DOWER.  697 

death  of  the  husband.  The  objection  urged  against  her  is,  there 
was  a  time  when  if  your  husband  had  died,  you  would  not  have  been 
entitled  to  dower.  To  this  she  may  well  answer,  true  it  is,  there 
was  such  a  time,  but  it  has  gone  by  and  when  my  husband  died, 
there  was  no  legal  bar  in  my  way.  The  law  says,  a  widow  shall  be 
endowed,  unless  there  has  been  a  divorce  for  her  misconduct;  there 
has  been  no  such  divorce  in  my  case,  and  I  am  a  widow  and  claim 
my  right.     Her  arguments  rest,  I  think,  on  a  solid  foundation. 

It  is  not  very  important  whether  we  regard  the  late  revision  of  the 
statutes  as  working  a  simple  repeal  of  the  act  of  1787,  and  thus 
reviving  the  ancient  common  law;  or  whether  we  regard  it  as  a 
repeal,  accompanied  by  a  new  provision;  for  in  either  case,  the  mere 
fact  of  living  in  adultery  ceased  to  be  a  bar  to  dower  in  1830,  and 
the  husband  did  not  die  until  1837.  There  had  been  no  divorce,  and 
there  was  at  that  time  no  obstacle  in  the  way  of  the  plaintiff's  claim. 

The  defendant's  answer  to  this  view  of  the  case  is,  that  the  plain- 
tiff had  a  right,  interest  or  estate  in  the  land  in  the  lifetime  of  the 
husband,  which  was  forfeited  by  the  adultery  prior  to  1830;  and  we 
are  referred  to  the  saving  clauses  in  the  repealing  statute.  2  R.  S. 
779,  §§  5,  6.  The  argument  assumes  what  cannot  be  maintained. 
While  the  husband  lives,  the  wife  has  no  right,  interest  or  estate  in 
the  land.  She  has  nothing  but  a  mere  capacity  to  take,  in  the  event 
of  her  surviving  her  husband  —  she  is  dowable.  It  is  not  until  she 
becomes  a  widow,  that  she  is  entitled  to  dower.  It  was  the  widow, 
not  the  wife,  who  was  provided  for  by  magna  charta.  9  Hen.  III., 
ch.  7;  2  Inst.  16.  And  so  it  has  always  been  in  our  statutes  con- 
cerning dower.  1  R.  L.  56,  ch.  4;  1  R.  S.  740.  The  legal  assurance 
that  the  wife  shall  have  dower  if  she  becomes  a  widow,  is  sometimes 
spoken  of,  through  the  imperfection  of  language,  as  though  it  were 
a  present  estate  or  interest  in  the  land;  but,  in  truth,  it  is  not  so; 
she  has  no  right,  until  after  the  death  of  her  husband.  In  Lampef  s 
Case,  10  Co.  49,  Lord  Coke,  although  he  was  endeavoring  to  prove 
that  the  wife  might  be  barred  by  a  fine,  was  forced  to  admit  that, 
"  notwithstanding  her  husband  is  seised  in  fee,  and  the  marriage  is 
lawful  yet  she  has  but  a  possibility  of  dower  till  the  death  of  her 
husband."     *     *     * 

It  is  undoubtedly  true,  as  a  general  rule,  that  a  statute  shall  not 
have  a  retrospect  beyond  the  time  of  its  commencement,  or  be  so 
construed  as  to  take  away  a  vested  right  of  property,  or  defeat  a 
right  of  action  already  accrued.  Saver  v.  Wisner,  8  Wendell,  661; 
Varick  v.  Briggs,  6  Paige,  ^2.  But  that  doctrine  can  have  no  bearing 
upon  this  case.  While  her  husband  lived  the  plaintiff  had  no 
interest  in  the  land;  no  right  of  action  which  could  be  forfeited. 


698      ESTATES   AS   TO  QUANTITY   AND    QUALITY.       [PT.  IV.  CII.  I. 

Her  misconduct  vested  no  new  interest  or  title  in  any  third  person, 
and  consequently  none  was  taken  away  by  the  act  of  1830. 

I  cannot  think  it  a  sufficient  objection  to  the  plaintiff's  claim,  that 
there  was  a  time,  when,  if  her  husband  had  died,  she  would  have 
been  barred.  Though  she  was  disabled  by  the  adultery,  and  her 
dowable  capacity  was  gone  for  a  time,  it  was  restored  before  the 
right  accrued  —  the  obstacle  in  the  way  of  her  taking  was  removed 
by  the  repeal  of  the  act  of  1787.     *     *     * 

New  trial  granted. 


(l>.)  Loss  of  husband' s  estate. 

WHEELER  v.  KIRTLAND. 
27  New  Jersey  Equity,  534.  —  1875. 

Reed,  J.  — *  *  *  The  wife,  by  her  bill,  now  claims  to  have  an 
interest  in  the  award,  by  reason  of  her  inchoate  dower  in  the  land 
so  condemned. 

Two  questions  are  presented:  First.  Has  the  wife  an  interest  in 
this  award?     Second.   If  so,  what  interest? 

The  character  of  inchoate  dower  has  been  the  subject  of  much 
contrariety  of  opinion  It  is  said  not  to  be  an  estate.  It  is  not  the 
subject  of  grant.  It  cannot  be  taken  upon  execution.  Equity  will 
not  apply  it  to  the  satisfaction  of  the  debts  of  the  wife.  As  dower 
was  a  humane  provision  for  the  sustenance  of  the  widow  and  younger 
children,  some  limit  was  imposed  on  the  power  to  defeat  its  consum- 
mation. Yet,  while  not  technically  an  estate,  it  cannot,  at  this  day, 
be  denied  that  inchoate  dower  is  a  valuable  interest  in  land.  It  is 
an  interest  which  the  courts  have  repeatedly  recognized.  Its  pres- 
ence works  a  breach  of  the  covenants  against  incumbrances.  Carter 
v.  Dentnan,  3  Zab.  260.  Its  relinquishment  is  a  valuable  considera- 
tion to  support  a  conveyance  by  her  husband  to  her  against  his 
creditors  Wright  x.  Stanard,  2  Brock.  311;  or  a  promissory  note 
given  by  a  purchaser.     Nims  v.  Bigelow,  45  N.  H.  343. 

A  conveyance  by  the  husband  on  the  eve  of  marriage,  to  defeat 
dower  of  the  wife,  will  be  set  aside  during  the  life  of  the  husband. 
Smith  v.  Smith,  2  Halst.  515.  And  when,  by  judicial  proceedings, 
land  is  converted  into  money,  the  wife's  interest  is  still  recognized 
and  protected.  The  character  of  land  is  impressed  upon  the  fund, 
ami  courts  of  equity  will  secure  that  portion  of  the  money  which 
represents  her  inchoate  interest.  Matthews  v.  Ditryea,  45  Barb. 
69;  Malloney  \.  Floran,  49  N.  Y.  116;  Vartie  v.  Underwood,  18  Barb. 
561.      This  principle   has  been  recognized  in  this   State,  in  the  case 


II.  3.]  LIFE   ESTATES:     DOWER.  699 

of  Hays  v.Whitall,  2  Beas.  241.  It  seems,  therefore,  clear  that  the 
wife  had  a  valuable  interest  in  the  strip  of  land  condemned.  It  is 
equally  clear  that  if  the  amount  awarded  represents  the  interest  of 
both  husband  and  wife,  she  has  an  interest  in  the  award,  which, 
upon  general  principles,  equity  is  bound  to  protect.  It  is  insisted, 
however,  that  no  portion  of  this  award  represents  the  inchoate 
dower  of  the  wife  in  the  lands.  It  is  said  that  when  lands  are  taken 
for  public  use,  the  mere  exercise  of  the  right  of  eminent  domain  in 
a  proceeding  against  the  interest  of  the  husband,  extinguishes  this 
right  of  the  wife,  without  notice  or  compensation  to  her.  This  is 
the  doctrine  undoubtedly  enunciated  by  the  text-writers.  Dillon  on 
Mun.  Cor.,  §§  459-496;  Scribner  on  Dower,  vol.  II.,  p.  551.  The 
two  cases  upon  which  these  writers  rely  are  Gwynne  v.  Cincinnati,  3 
Ohio,  24,  and  Moore  v.  City  of  New  York,  8  N.  Y.  no.  The  first 
was  an  application  of  the  rule  to  dedicated  lands,  and  the  latter  to 
lands  taken  by  condemnation. 

While  the  conclusion  is  in  conformity  with  the  settled  law  in  Eng- 
land and  this  country,  the  conclusion  is  reached  in  the  case  of  Moore 
v.  The  City  of  New  York,  by  a  general  assertion  that  the  inchoate 
interest  of  the  wife  was  without  value.  Gardner,  Judge,  says: 
"  The  wife  had  no  interest  in  the  land,  and  the  possibility  she  did 
possess  was  incapable  of  being  estimated  with  any  degree  of 
accuracy."  This  was  said  in  the  face  of  the  fact  that,  years  before 
Chancellor  Walworth  had  propounded  and  acted  upon  a  rule  for  the 
computation  of  the  value  of  this  very  interest.  Jackson  v.  Edivards, 
7  Paige,  408;  Bartlette  v.  Vanzandt,  4  Sandf.  Ch.  396.  The  broad 
statement  in  Moore  v.  The  City  of  New  York,  is  not  only  opposed  to 
the  weight  of  authority  elsewhere,  but  has  been  repudiated  or  modi- 
fied in  later  cases  in  that  State.  ///  the  Matter  of  Central  Park 
Extension,  16  Abb.  Prac.  R.  68;  Simar  v.  Canaday,  53  N.  Y.  298,  etc. 

The  extinguishment  of  dower  by  condemnation  means  no  more 
than  this,  that,  as  against  the  State,  no  widow  can  claim  dower  in 
lands  devoted  to  public  use.  It  has  its  origin  at  a  time  when  the 
sovereign  power  in  the  State  could  assume  its  right  to  the  use  of  the 
property  of  the  subject  without  compensation.  The  right  was  exer- 
cised by  the  removal  from  possession,  of  all  parties  whose  occupancy 
was  inconsistent  with  the  object  of  the  public  use.  No  one  there- 
after could  claim  a  possession  inconsistent  with  such  user.  The 
widow  was  merely  in  the  same  position  as  any  other  person  claiming 
an  interest  in  the  land.  The  rights  of  all  parties  were  subject  to 
this  dominion  of  the  State,  and  were  in  abeyance  while  the  State 
chose  to  exercise  its  privilege.  Thus  it  was  said  by  Coke,  "  Of  a 
castle  that  is  maintained  for  the  necessary  defence  of  the  realm,  a 


JOO      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.   CH.  I. 

woman  shall  not  be  endowed,  because  it  ought  not  to  be  divided, 
and  the  public  shall  be  preferred  before  the  private."  "  Here,"  says 
Scribner,  "  we  see  shadowed  forth  the  principle  upon  which  the 
courts  at  a  later  day  have  proceeded,  in  holding  the  inchoate  dower  of 
the  wife  extinguished  in  lands  appropriated,  according  to  the  forms 
of  law,  to  the  uses  of  the  public."  Scribner  on  Dower,  vol.  I.,  p. 
550.  It  is  apparent  that  the  doctrine  arose,  not  because  the  inchoate 
dower  was  valueless,  but  because  it,  like  all  other  interests,  was 
servient  to  the  power  which  inheres  in  every  government,  and  is 
here  styled  eminent  domain.  As  the  interest  is  valuable,  she  is, 
under  our  law,  entitled  to  compensation  where  those  lands  are  taken 
for  public  use. 

This  conclusion  does  not  conflict  with  the  doctrine  that  where 
lands  are  condemned  by  proceedings  to  which  the  husband  only  is 
a  party,  that  the  wife  cannot  thereafter  assert  a  right  in  the  land 
against  the  public.  I  think,  for  the  purposes  of  condemnation  and 
compensation,  this  interest  of  the  wife's,  not  rising  to  the  dignity 
of  an  estate,  is  represented  in  the  fee  of  the  husband.  We  know 
that  in  making  compensation,  the  right  taken  is  considered  a  per- 
petual easement,  equivalent  to  the  fee,  and  that  damages  are  assessed 
for  the  value  of  the  entire  interest  in  the  land. 

It  has  never  been  hinted  that  a  deduction  for  the  wife's  inchoate 
dower  should  be  made.  The  value  of  her  interest,  therefore,  passes 
into  the  award.  In  this  view,  the  condemnation  of  the  land,  by 
notice  to  the  husband,  condemns  and  extinguishes  the  inchoate 
interest  of  the  wife.  The  land  is  transmitted  into  money.  It 
assumes  a  shape  where  she  can  claim  her  right  without  interfering 
with  the  public.  Equity  will  secure  to  her  that  portion  of  the  award 
which  represents  her  inchoate  dower. 

While  this  doctrine  is  expressly  held  in  no  preceding  case,  the 
court,  in  the  Matter  of  the  Central  Park  Extension,  16  Abb.  Prac.  R.  69, 
speaking  of  the  case  of  Moore  v.  The  City  of  New  York,  says:  "  It 
might  have  been  added  to  that  case,  that  the  right  was  transferred 
from  the  land  to  the  money  received  from  the  land  by  the  husband, 
if  the  wife  survived  him."  Mr.  Scribner,  vol.  II.,  p.  21,  says:  "  It 
may  be  that  after  the  value  of  the  entire  estate  is  ascertained,  and 
the  amount  paid  over  to  the  proper  legal  authorities,  particularly  if 
she  be  a  party  to  the  proceedings,  her  right  is  transferred  from  the 
land  to  the  money  representing  the  land." 

I  think  that  by  the  practice  in  this  State,  of  compensating  for  the 
entire  value  of  the  land,  upon  notice  to  the  husband,  the  wife  is 
represented  by  her  husband,  and  is  always  a  party  to  the  proceed- 
ings for  the  purpose  <>f  enabling  her  to  assert  her  right  to  her  inter- 


II.  3-]  LIFE   ESTATES:    DOWER.  701 

est  in  the  award.  Upon  the  first  question,  I  think  the  conclusion  of 
the  vice-chancellor  was  correct.  This  being  so,  the  parties  desire 
a  sum  in  gross,  in  preference  to  the  securing  of  one-third  of  the 
principal,  to  await  the  event  of  her  surviving  her  husband.  In  what 
portion  of  the  award  is  the  wife  entitled  to  inchoate  dower?  The 
entire  amount  of  damages  awarded  was  the  sum  of  $15,000.  The 
benefits  were  $1,500.  The  benefits  were  properly  deducted,  leaving 
the  balance  $13,500.  Of  this  sum,  it  is  claimed  that  only  $4,800 
were  for  the  value  of  land  taken,  the  remaining  portion  being  for 
damages  to  the  adjacent  land  of  the  husband.  It  is  claimed  that 
the  wife  has  no  interest  in  the  damages. 

It  is  true,  generally,  that  the  wife  has  no  interest  in  damages 
resulting  from  injury  to  land.  I  think,  however,  in  this  instance, 
that  the  computation  of  the  vice-chancellor  upon  the  entire  amount 
of  $13,500,  was  correct.  It  represented  the  depreciation  of  the 
entire  tract.  Although  she  has  still  her  right  of  dower  in  the  remain- 
ing portion,  yet  by  the  sale  under  the  Wheeler  and  Green  judgment, 
before,  any  improvements  were  made,  her  right  is  limited  to 
recover  a  third  of  the  land  at  the  time  of  the  sale.  Vandorn  v. 
Vandorn,  Penn.  513.  She  gets,  therefore,  what  she  would  have 
recovered  had  the  land  not  been  taken. 

I  think  the  decree  of  the  chancellor  should  be  affirmed,  with  costs. 


TRUSTEES  OF  THE  POOR  v.  PRATT. 

10  Maryland,  5.  —  1856. 
[Reported  hereiji  at  p.  687.] 


(r.)  Husband*  s  conveyance  during  coverture .' 

DICK  v.  DOUGHTEN. 
1  Delaware  Chancery,  320.  —  1827. 

Bill  in  equity  for  the  assignment  of  dower.  The  case  made  by 
this  bill  was  as  follows: 

James  Dick,  deceased,  the  husband  of  the  complainant,  was  in  his 
lifetime  seised  in  fee  simple  of  a  certain  tract  of  land,  situate  in  New 
Castle  county.  About  the  21st  of  April,  1803,  he  sold  and  conveyed 
the  same  to  David  L.  Reece,  the  complainant  being  before  and 
at  the    time  of  the    sale  and    conveyance    the    lawful    wife    of    the 

1  See  N.  Y.  R.  P.  L.  §  183.  —  Ed. 


•J02      ESTATES   AS    TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CH.  I. 

grantor,  the  said  James  Dick.  The  bill  alleged  that  the  complainant 
had  not  at  any  time  released  her  dower  in  said  land  or  barred  her- 
self thereof  by  any  act  or  deed  whatever.  The  title  to  the  land  was 
traced  down  by  the  bill,  from  David  L.  Reece  to  William  Doughten, 
the  present  tenant  and  the  defendant  in  this  suit.  James  Dick,  the 
husband,  died  on  the  26th  of  December,  1803,  leaving  to  survive 
him  his  widow,  the  complainant,  and  one  daughter.  William  Dough- 
ten,  the  defendant,  was  in  possession  of  the  lands  at  the  filing  of  this 
bill,  and  had  been  since  the  21st  of  March,  1814.  The  prayer  was 
that  dower  be  assigned  to  the  complainant  out  of  the  said  tract  of 
land,  and  that  the  defendants  account  with  her  for  the  rents  ?nd 
profits  which  may  have  accrued  therefrom  since  the  date  of  the 
death  of  the  said  James  Dick.     *     *     * 

Ridgely,  Chancellor.  —  It  is  now  for  the  first  time  objected  in 
argument  for  the  defendants,  that  William  Doughten  was  a  pur- 
chaser without  notice,  for  a  valuable  consideration.     *     *     * 

I  might  here  close  this  part  of  the  case;  but  two  other  points  were 
made  in  the  argument.  First,  on  the  part  of  the  complainant,  it  was 
objected  that  the  defendant  could  not  make  the  defense,  by  answer, 
of  his  being  a  purchaser  for  a  valuable  consideration,  without  notice. 
The  second  point  was,  whether  the  defendant  can  avail  himself,  by 
plea  or  answer,  of  his  being  a  purchaser  for  a  valuable  consideration 
without  notice,  as  against  a  claim  of  dower  in  the  complainant. 

First,  I  think  a  defendant  may  avail  himself  of  this  defense  by 
answer  as  well  as  plea.  The  following  authorities  support  this 
opinion:  1  Harrinson's  Ch.  Pr.  244;  Harris  v.  Ingleton,  3  P.  Wms. 
91,  95;  2  Ves.  Sr.  492.  Lord  Hardwicke  says,  in  Chapman  v.  Turner, 
1  Atk.  54,  "  The  defense  proper  for  a  plea  must  be  such  as  reduces 
the  cause  to  a  particular  point,  and  from  thence  creates  a  bar  to  the 
suit,  and  is  to  save  the  parties  the  expense  of  an  examination;  and 
it  is  not  every  good  defense  in  equity  that  is  good  in  a  plea,  for 
where  the  defense  consists  of  a  variety  of  circumstances,  there  is  no 
use  of  a  plea;  the  examination  must  still  be  at  large,  and  the  effect 
of  allowing  such  a  plea  will  be  that  the  court  will  give  their  judg- 
ment on  the  circumstances  of  the  case  before  they  are  made  out  by 
the  proof. "  In  addition,  Lord  Redesdale's  Treatise  on  Pleadings, 
246,  may  be  consulted  on  this  subject.  The  defense  in  this  case 
might,  possibly,  have  been  better  made  by  a  plea  and  by  answer  in 
support  of  the  plea;  but  I  will  not  enlarge  on  this  subject. 

The  second  might  have  been  much  the  most  important  point;  but 
from  the  failure  of  proof  in  the  defendant,  it  is  not  of  the  first  con- 
sideration   in   the   cause.     However,  I  shall  not  pass  it  by  without 


II.   3-]  LIFE   ESTATES:    DOWER.  703 

notice.  In  Williams  v.Lambe,  3  Bro.  Ch.  Rep.  264,  which  was  a  bill 
for  dower,  and  in  which  the  defendant  pleaded  to  the  discovery  and 
relief  that  he  was  a  purchaser  for  a  valuable  consideration,  without 
notice  of  the  vendor  being  married,  Lord  Thurlow  said,  "  the  only- 
question  was,  whether  a  plea  of  purchase  without  notice  would  lie 
against  a  bill  to  set  out  dower;  that  he  thought  where  the  party  is 
pursuing  a  legal  title,  as  dower  is,  that  plea  does  not  apply,  it  being 
only  a  bar  to  an  equitable,  not  to  a  legal  claim."  He  therefore 
overruled  the  plea.  Mr.  Park,  in  his  Treatise  on  Dower,  328,  says 
the  case  of  Williams  v.  Lambe  may  be  supported  on  its  particular 
circumstances,  on  the  ground  that  the  plea  covered  too  much,  being 
to  the  relief  as  well  as  to  the  discovery.  The  dowress  had  a  right  to 
recover  against  the  purchaser  at  law,  and  if  it  be  established  that  a 
court  of  equity  has  a  concurrent  jurisdiction  to  assign  dower,  such 
a  plea  to  the  relief  would  appear  to  be  inexplicable;  although  it 
might  be  good  to  the  discovery,  since  the  relief  prayed  is  not  the 
assistance  of  the  court  to  enable  the  dowress  to  make  good  her  title 
at  law,  but  merely  to  give  her  the  effect  of  a  recovery  at  law.  It  is, 
indeed,  noticeable  that  the  observations  of  Lord  Thurlow  seem  dis- 
tinctly addressed  to  the  plea,  as  a  plea  to  the  relief,  and  his  omitting 
to  intimate  that  such  a  plea  might  be  good  as  to  the  discovery,  may 
possibly  be  accounted  for  by  the  consideration  that  in  a  case  so  cir- 
cumstanced, a  plea  to  the  discovery  would  almost  unavoidably  be 
overruled  by  the  answer.  Now,  in  the  case  of  Williams  v.  Lambe,  I 
do  not  perceive  the  ground  for  Mr.  Park's  distinction;  for  as  the 
case  is  reported  by  Brown,  although  Lord  Thurlow's  remarks  were 
addressed  to  the  plea,  yet  they  distinctly  state  that  the  plea  did  not 
apply  as  a  bar  to  a  legal  claim;  that  dower  was  a  legal  claim,  and 
therefore  the  plea  was  overruled.  But  suppose  Mr.  Park's  distinc- 
tion to  be  correct,  this  answer  does  not  object  to  making  the  dis- 
covery; and  it  does  state  the  several  deeds  of  conveyance,  and 
makes  a  full  discovery  as  to  the  title;  and  then  as  I  clearly  under- 
stand it,  the  fact  that  the  purchase  for  a  full,  fair  and  just  price, 
without  any  notice,  knowledge  or  belief  that  there  existed  any  defect 
in  the  title,  or  that  the  said  tract  of  land  was  liable  to  any  claim  or 
demand  of  dower  by  the  said  Martha  Dick  is  opposed  as  a  defense 
to  the  relief.  This  is  a  legal,  not  an  equitable  title,  and  I  should 
decree  in  favor  of  the  complainant,  had  the  defendants  supported 
their  answer  by  proof,  unless  the  admission  of  the  sufficiency  of  the 
answer  by  not  excepting  it  might  have  interposed  a  difficulty.     *    *    * 


704      ESTATES   AS   TO    QUANTITY    AND    QUALITY.       [PT.  IV.  CH.  I. 
d.    Wife's  release  of  dower. 

HARRIMAN  v.  GRAY. 

49   Maine,  537.  —  i860. 

Appleton,  J.  — On  the  23d  of  October,  1823,  the  plaintiff's  hus- 
band conveyed  the  premises  in  which  dower  is  demanded,  to  Joab 
Harriman,  by  a  deed  to  which  she  was  not  a  party. 

On  the  19th  January,  1827,  Joab  Harriman  quitclaimed  the  same 
to  James  Harriman  by  deed  having  no  covenants  and  closing  in  these 
words:  "  So  that  neither  I,  the  said  Joab  Harriman,  nor  my  heirs, 
nor  any  other  person  or  persons  claiming  from,  or  under  me  or  them 
or  in  the  name,  right  or  stead  of  me  or  them,  shall  or  will,  by  any 
way  or  means,  have,  claim  or  demand  any  right  or  title  to  the  afore- 
said premises,  or  their  appurtenances,  or  any  part  or  parcel  thereof 
forever." 

From  James  Harriman  the  title  passed  through  various  mesne  con- 
veyances to  the  tenant. 

Upon  the  case  as  thus  presented,  the  plaintiff's  right  to  dower 
would  seem  to  be  unquestioned.  The  tenant  claims  to  bar  the  plain- 
tiff's right  to  dower  by  reason  of  her  release  of  the  same  to  Joab 
Harriman,  by  deed  dated  April  2,  1838.  But,  long  before  this,  the 
title  to  the  premises  in  question  had  been  conveyed  to  those  under 
whom  the  tenants  claim.  The  releasee  had  ceased  to  have  any  inter- 
est therein.  A  release  of  dower  to  a  stranger  constitutes  no  defense. 
Pixley  v.  Bennett,  11  Mass.  298.  "  In  dower,  the  tenant  pleads  a 
release  from  the  demandant  to  such  an  one,  tenant  in  possessione  tene- 
mentor  prcedict  existent,  and  because  not  said  he  was  tenens  liberi  tetie- 
menti,  it  was  holden  no  plea;  and  adjudged  for  the  demandant;  for 
a  release  of  dower,  to  a  tenant  for  years,  or  at  will  can  be  no  bar  of 
dower,  because  she  cannot  demand  it  against  them."    Cro.  Jac.  151. 

Neither  is  the  demandant  to  be  estopped  by  this  conveyance. 
Estoppels,  to  be  binding,  must  be  reciprocal.  As  between  the 
demandant  and  Joab  Harriman,  she  would  be  estopped.  But  the 
release  to  Joab  does  not  inure  to  his  grantees,  and,  not  inuring  by 
estoppel  to  their  benefit,  they  cannot  set  it  up  as  a  bar.  It  has  been 
repeatedly  settled,  that  a  grantee  is  not  estopped  from  setting  up  a 
subsequent  title,  by  language  such  as  is  found  in  the  deed  of  Joab 
to  James  Harriman.  Nor  do  the  subsequently  acquired  rights  of 
Joab  inure  to  the  use  of  his  grantee.     Pike  v.  Galvin,  29  Maine,  183. 

Case  to  stand  for  trial. 


II.  3.]  LIFE    ESTATES:     DOWER.  705 

WRONKOW  v.  OAKLEY. 
133  New  York,  505.  — 1892. 

Peckham,  J.  —  In  relation  to  the  question  arising  upon  this  appli- 
cation of  the  purchaser,  Wolf,  to  be  relieved  from  his  bid  at  the 
judicial  sale  on  the  ground  that  the  interest  of  the  wife  of  Bauer 
had  not  been  duly  conveyed  by  virtue  of  her  power  of  attorney  to 
her  husband,  we  are  of  the  opinion  that  the  order  of  the  General 
Term  is  erroneous  and  for  the  reasons  stated  in  the  dissenting  opinion 
of  Mr.  Justice  Andrews  at  the  General  Term  *  *  *  we  think 
there  is  no  objection  to  the  title  arising  out  of  the  power  of  attorney 
given  by  the  wife  to  the  husband.  She  had  the  right  to  execute  a 
power  of  attorney  under  the  act,  chap.  300  of  the  Laws  of  1878, ■  and 
in  executing  such  power  she  could  appoint  her  husband  her  agent  or 
attorney  in  fact.     *     *     * 


(e.)   Testamentary  gift  in  lieu  of  dower. 
KONVALINKA  v.  SCHLEGEL. 

104  New  York,  125.  —  1887. 

Andrews,  J.  —  The  question  is  whether  the  widow  of  the  testator 
is  put  to  her  election  between  dower  and  the  provision  in  the  will. 

The  estate  of  the  testator  consisted  of  both  real  and  personal  prop- 
erty. The  will,  after  directing  the  payment  of  the  testator's  debts 
and  funeral  expenses,  and  after  giving  to  his  wife  the  bed-room 
furniture  in  his  dwelling  house,  and  to  his  children  the  rest  of  the 
furniture  therein,  proceeds  as  follows:  "  All  the  rest,  residue  and 
remainder  of  my  estate,  property  and  effects  of  every  nature,  kind 
and  description,  I  give,  devise  and  bequeath  to  my  executors  and 
executrix  hereinafter  named  and  I  authorize  and  direct  them  to  sell 
and  dispose  of  the  same  at  such  time  and  on  such  terms  as  to  them 
shall  seem  best,  and  to  divide  the  proceeds  thereof  equally  among 
my  wife  and  children,  share  and  share  alike." 

There  can  be  no  controversy  as  to  the  general  principles  govern- 
ing the  question  of  election  between  dower  and  a  provision  for  the 
widow  in  the  will.  Dower  is  favored.  It  is  never  excluded  by  a 
provision  for  a  wife,  except  by  express  words  or  by  necessary  impli- 
cation. Where  there  are  no  express  words  there  must  be  upon  the 
face  of  the  will  a  demonstration  of  the  intention  of  the  testator  that 
the  widow  shall  not  take  both  dower  and  the  provision.     The  will 

1  §  187  N.  Y.  R.  P.  L.  —  Ed. 

LAW  OF  PROP.  IN  LAND  —  45 


706     estates  as  to  quantity  and  quality.     [PT.  IV.  CH.  I. 

furnishes  this  demonstration  only  when  it  clearly  appears  without 
ambiguity  or  doubt,  that  to  permit  the  widow  to  claim  both  dower 
and  the  provision  would  interfere  with  the  other  dispositions  and 
disturb  the  scheme  of  the  testator,  as  manifested  by  his  will.  The 
intention  of  the  testator  to  put  the  widow  to  an  election  cannot  be 
inferred  from  the  extent  of  the  provision,  or  because  she  is  a  devisee 
under  the  will  for  life  or  in  fee,  or  because  it  may  seem  to  the  court 
that  to  permit  the  widow  to  claim  both  the  provision  and  dower 
would  be  unjust  as  a  family  arrangement  or  even  because  it  may 
be  inferred  or  believed,  in  view  of  all  the  circumstances,  that  if  the 
attention  of  the  testator  had  been  drawn  to  the  subject  he  would 
have  expressly  excluded  dower.  We  repeat,  the  only  sufficient  and 
adequate  demonstration  which,  in  the  absence  of  express  words,  will 
put  the  widow  to  her  election,  is  a  clear  incompatibility,  arising  on 
the  face  of  the  will,  between  a  claim  of  dower  and  a  claim  to  the 
benefit  given  by  the  will.  We  cite  a  few  of  the  cases  in  this  State 
showing  the  general  principle  and  the  wide  range  of  application. 
Adsit  v.  Adsit,  2  J.  Ch.  449;  Sandford  v.  Jackson,  10  Paige,  266; 
Church  v.  Bull,  2  Den.  430;  Lewis  v.  Smith,  9  N.  Y.  502;  Fuller  v. 
Yates,  8  Paige,  325;  Havens  v.  Havens,  1  Sand.  Ch.  324,  331;  Wood 
v.  Wood,  5  Paige,  596. 

In  view  of  these  settled  rules,  we  think  the  widow  in  this  case  was 
not  put  to  her  election.  The  devise  to  the  executors  was  void  as  a 
trust,  but  valid  as  a  power  in  trust,  for  the  sale  of  the  lands  and  a 
division  of  the  proceeds,  and  the  lands  descended  to  the  heirs  of  the 
testator,  subject  to  the  execution  of  the  power.  1  Rev.  Stat.  p.  729, 
§  56;  Cooke  v.  Piatt,  98  N.  Y.  35.  It  is  strenuously  urged  that  the 
power  of  sale  being  peremptory,  worked  an  equitable  conversion  of 
the  lands  into  personalty,  as  of  the  time  of  the  testator's  death,  and 
created  a  trust  in  the  executors  in  the  proceeds  for  the  purpose  of 
distribution,  which  trust,  it  is  alleged,  is  inconsistent  with  a  claim  of 
dower.  The  doctrine  of  equitable  conversion,  as  the  phrase  implies, 
is  a  fiction  of  equity  which  is  frequently  applied  to  solve  questions 
as  to  the  validity  of  trusts;  to  determine  the  legal  character  of  the 
interests  of  beneficiaries;  the  devolution  of  property  as  between  real 
and  personal  representatives,  and  for  other  purposes.  It  seems  to 
be  supposed  that  there  is  a  necessary  repugnancy  between  the  exist- 
ence of  a  trust  in  real  property  created  by  a  will,  and  an  outstanding 
dower  interest  of  a  widow  in  the  trust  property.  We  perceive  no 
foundation  for  this  contention.  If  the  purposes  of  a  trust,  as  declared, 
require  that  the  entire  title,  free  from  the  dower  interest  of  the 
widow,  should  be  vested  in  the  trustees  in  order  to  effectuate  the 
purposes  <>(  the  testator   in  creating  it,  a  clear  case  for  an  election 


II.  3-]  LIFE   ESTATES  :    DOWER.  707 

is  presented.  Vernon  v.  Vernon,  53  N.  Y.  351.  But  the  mere  crea- 
tion of  a  trust  for  the  sale  of  real  property  and  its  distribution,  is 
not  inconsistent  with  the  existence  of  a  dower  interest  in  the  same 
property.  There  is  no  legal  difficulty  in  the  trustee  executing  the 
power  of  sale,  but  the  sale  will  necessarily  be  subject  to  the  widow's 
right  of  dower,  as  it  would  be  subject  to  any  outstanding  interest  in 
a  third  person,  paramount  to  that  of  the  trustee.  In  the  cases  of 
Savage  v.  Burnham,  17  N.  Y.  561,  and  Tobias  v.  Keteham,  32  Id.  319, 
the  widow  was  put  to  her  election,  not  because  the  vesting  of  the 
title  in  trustees  was  per  se  inconsistent  with  a  claim  for  dower  but 
for  the  reason  that  the  will  made  a  disposition  of  the  income,  and 
contained  other  provisions  which  would  be  in  part  defeated  if  dower 
was  insisted  upon.  There  is  language  in  the  latter  cases,  which  dis- 
connected with  the  context,  may  give  color  to  the  contention  of  the 
appellant.  But  it  is  the  principle  upon  which  adjudged  cases  pro- 
ceed, which  is  mainly  to  be  looked  to,  because  a  correct  principle  is 
sometimes  misapplied.  There  is,  however,  no  ground  for  misappre- 
hension of  the  meaning  of  the  learned  judge  in  that  case,  interpreting 
his  language  with  reference  to  facts  then  under  consideration.  It 
has  frequently  been  declared  that  powers  of,  or  in  trust  for  sale,  are 
not  inconsistent  with  the  widow's  right  of  dower.  Gibson  v.  Gibson, 
17  Eng.  L.  and  Eq.  349;  Bending  v.  Bending,  3  Kay  &  J.  257;  Adsit 
v.  Adsit,  supra;  In  re  Bracer,  92  N.  Y.  239.  And  it  was  held  in 
Wood  v.  Wood,  5  Paige,  596,  that  the  widow  was  not  put  to  her 
election  where  the  testator  devised  all  his  property  to  trustees  with 
a  peremptory  power  of  sale,  and  directed  the  payment  to  the  widow 
of  an  annuity  out  of  the  converted  fund.  The  same  conclusion  was 
reached  under  very  similar  circumstances  in  Fuller  v.  Yates,  8  Paige, 
325,  and  In  re  Frazer,  supra,  the  widow's  dower  was  held  not  to  be 
excluded  by  a  provision  in  the  will,  although  as  to  a  portion  of  the 
realty  the  power  of  sale  given  to  the  executors  was  peremptory.  The 
general  doctrine  is  very  clearly  stated  by  the  vice-chancellor  in  Ellis 
v.  Icivis,  3  Hare,  310:  "I  take  the  law  to  be  clearly  settled  at  this 
day  that  a  devise  of  lands  eo  nomine  upon  trusts  for  sale,  or  a  devise 
of  lands  eo  nomine  to  a  devisee  beneficially  does  not  per  se  express  an 
intention  to  devise  the  land  otherwise  than  subject  to  its  legal  inci- 
dents, dower  included."  This  remark  of  the  vice-chancellor  also 
answers  the  claim  that  the  testator,  when  he  described  as  the  subject 
of  the  dower,  "  all  the  rest,  residue  and  remainder  of  my  estate," 
meant  the  entire  title,  or  the  estate  as  enjoyed  by  him.  A  similar 
argument  was  answered  by  Lord  Thurlow  in  Foster  v.  Cook,  3  Bro. 
Ch.  C.  347.  "  Because,"  he  said,  "  the  testator  gives  all  his  prop- 
erty to  the  trustees,  I  am  to  gather  from  his  having  given  all  he  has, 


708      ESTATES   AS   TO    QUANTITY   AND    QUALITY.      [PT.  IV.  CH.  I. 

that  he  has  given  that  which  he  has  not."  The  argument  that  the 
testator  intended  equality  of  division  between  his  wife  and  children  is 
also  answered  by  the  same  consideration.  The  proceeds  of  the 
testator's  estate  were,  by  the  will,  to  be  equally  distributed.  It  left 
untouched  the  dower  of  the  widow,  which  he  could  not  sell  or 
authorize  to  be  sold,  and  which  was  a  legal  right  not  derived  from 
him  and  paramount  to  all  others.  It  may  be  conjectured,  perhaps 
reasonably  inferred,  that  the  testator  really  intended  the  provision 
for  his  wife  to  be  exclusive  of  any  other  interest,  but  so  it  is  not 
written  in  the  will,  and  we  are  not  permitted  to  yield  any  force  to 
the  suggestion.  It  is  a  question  of  legal  interpretation  which  has 
been  settled. 

Judgment  affirmed.1 


(/.)  Estoppel. 
HARRIMAN  v.  GRAY. 

49  Maine,  537.  —  1S60. 
[Reported  herein  at  p.  704. ]2 

(g.)  Statute  of  Limitations.1 

(6.)  Assignment  to  Widow  of    Her  Dower. 

Grimke,  J.,  in  LARROWE  v.  BEAM. 

10  Ohio,  498.  —  1841. 

The  remaining  question  relates  to  the  mode  in  which  dower  should 
be  assigned.  There  is  a  difference  where  the  land  is  conveyed  by 
the  husband  in  his  lifetime,  and  where  it  is  conveyed  by  the  heir.  In 
the  former  case,  the  widow  is  entitled  to  her  dower  according  to  the 
value  at  the  time  of  alienation,  for  the  heir  is  not  bound  to  warrant, 
except  according  to  the  value  as  it  was  at  the  time  of  the  sale. 
But  here  the  alienation  was  by  the  heir;  and  it  appears  that  fifty 
acres  have  been  cleared  on  the  lot  at  a  cost  of  $12  an  acre,  and 
buildings  have  been  erected  worth  $300  or  $400,  and  these  improve- 
ments, with  a  very  small  exception,  not  worth  noticing,  have  been 

1  See  ;'?:  180-182  N.  Y.  R.  P.  L.  —  Ed. 
•  s<-c  also  under  "  Title  "  infra.  —  Ed. 
•  infra  under  "  Title,  — ■  Ed." 


II.  3-]  LIFE   ESTATES  :    DOWER.  709 

made  by  the  heir.  They  were  then  made  at  his  own  risk;  he  is 
presumed  to  have  placed  them  there  with  a  full  knowledge  of  his 
obligations,  and  of  the  rights  of  the  complainant;  and  she  is  entitled 
to  be  endowed  according  to  the  value  of  the  land  (exclusive  of  the 
emblements)  at  the  time  of  the  assignment. 


WEBB  v.  TOWNSEND. 
1  Pickering  (Mass.),  20. —  1822. 


This  was  a  writ  of  dower.  The  question  in  the  case  was,  whether 
the  demandant  was  entitled  to  dower  in  land  aliened  by  her  husband 
during  the  coverture,  while  it  was  wild  and  uncultivated,  but 
which  at  the  time  of  the  demand  of  dower  had  been  brought  into  a 
state  of  cultivation  by  the  husband's  grantee  and  those  claiming 
under  him. 

It  was  agreed  that  certain  persons  should  be  a  committee  to  assign 
the  dower,  in  case  it  should  be  allowed. 

Mills,  for  the  demandant.  If  this  question  were  to  be  decided  by 
the  common  law  of  England,  the  demandant  would  be  entitled  to 
dower.  The  decision  in  Conner  v.  Shepherd,  15  Mass.  Rep.  164, 
made  an  inroad  upon  the  common  law.  There  the  land  continued 
in  a  wild  state  at  the  time  of  the  demand;  which  is  the  only  point  of 
difference  between  that  case  and  the  present  one.  We  do  not  ask 
the  court  to  revise  their  decision  in  that  case,  but  they  will  not  go 
beyond  it  to  the  prejudice  of  the  right  of  dower.  Where  the  land 
continues  wild,  the  widow  can  receive  no  benefit  from  her  dower 
without  committing  waste,  which  would  be  a  forfeiture.  Here  she 
may  immediately  enjoy  the  profits  without  committing  waste.  The 
case  of  Nash  v.  Boltwood,  decided  by  this  court  in  1783,  and  reported 
in  Story's  Pleadings,  366,  is  precisely  like  the  present,  and  is  not 
overruled  by  the  case  of  Conner  v.  Shepherd,  because  in  this  last  case 
the  land  continued  wild  at  the  time  of  the  demand. 

In  New  York  it  is  settled  that  a  tenant  for  life  may  cut  down  trees 
in  order  to  put  wild  land  in  a  state  of  cultivation;  Jaekson  v.  Brown- 
son,  7  Johns.  Rep.  237;  and  that  there  may  be  tenant  by  the  curtesy 
of  wild  land;  Jackson  v.  Selluk,  8  Johns.  Rep.  262.  Tenant  by  the 
curtesy  and  tenant  in  dower  are  correlative  terms,  and  they  are  in 
general  entitled  to  their  respective  estates  in  the  same  kind  of  land. 

The  reasoning  of  Dewey,  who  argued  for  the  tenant,  appears  suffi- 
ciently in  the  opinion  of  the  court. 

Per  Curiam.  In  Conner  v.  Shepherd,  it  was  decided,  that  a  widow 
is  not  dowable  of  land  in  a  wild  and  uncultivated  state.     In  several 


710      ESTATES   AS   TO    QUANTITY    AND    QUALITY.      [FT.  IV.  CH.  I. 

other  cases  it  has  been  determined,  that  when  land  of  which  a  widow 
is  dowable  shall  have  been  increased  in  value  by  a  grantee  of  her 
husband,  her  dower  shall  be  assigned  according  to  the  value  of  the 
land  when  alienated. 

Steams  v.  Swift,  8  Pick.  532;  Ayer  v.  Spring,  9  Mass.  R.  8;  Cat/in 
v.  Ware,  9  Mass.  R.  218;  Ayer  v.  Spring,  10  Mass.  R.  80;  Winder  v. 
Little,  1  Yeates,  152;  Humphrey  v.  Phinney,  2  Johns.  R.  484;  Dor- 
chester v.  Coventry,  11  Johns.  R.  510;  Hale  v.  James,  6  Johns.  Ch.  R. 
258;  Coatesx.  Cheever,  1  Cowen,  460;  Shaw  v.  White,  13  Johns.  R. 
179.  See  also  Gtfr<?  v.  Brazer,  3  Mass.  R.  544.  But  in  Thompson  v. 
Morrow,  5  Serg.  &  R.  289,  and  Poivellx.  Monson  6°  Brimfield  Man. 
Co.,  3  Mason,  347,  it  was  held,  that  the  widow  shall  be  endowed  of 
the  actual  value  of  the  lands  at  the  time  of  the  assignment  of  the 
dower,  excluding  from  the  estimate  the  increased  value  arising  from 
the  improvements  made  by  the  alienee.  See  also  Powell  v.  Monson 
6r*  Brimfield  Man.  Co.,  3  Mason,  459.  In  the  case  before  us,  when 
the  alienation  took  place,  the  land  was  in  a  state  of  nature,  and  the 
demandant  could  not  have  had  dower.  At  the  time  when  dower 
was  demanded,  the  land  had  become  a  cultivated  farm,  but  altogether 
by  the  labor  of  the  grantee,  or  those  who  claim  under  him.  It  is 
contended  that  some  of  the  reasons  on  which  the  decision  in  Conner 
v.  Shepherd  was  founded  do  not  apply  in  this  case,  because  now  the 
land  is  in  a  state  to  admit  of  the  enjoyment  of  dower  without  com- 
mitting waste,  and  thus  forfeiting  dower  the  moment  it  is  begun  to 
be  enjoyed;  which  would  not  be  the  case  in  respect  to  land  wholly 
uncultivated.  But  if  the  principle  settled  in  the  case  of  Libby  v. 
Swett  et  al.,  Story's  Pleadings,  365,  is  to  be  applied,  it  would  follow 
that  there  would  be  nothing  on  which  the  commissioners  could  act, 
who  should  be  appointed  to  assign  the  dower.  They  would  be 
required  by  the  commission  to  set  off  such  a  part  of  the  land  as 
would  yield  one-third  part  of  the  rents  and  profits  as  they  were  at 
the  time  of  the  alienation;  at  which  time  there  were  no  rents  and 
profits;  so  that  the  widow  could  get  nothing.  It  follows  necessarily 
from  the  cases  before  settled  in  relation  to  dower,  that  the  demand- 
ant cannot  prevail  in  this  action.  The  husband  was  not  seized  during 
the  coverture  of  any  estate  of  which  the  wid6w  could  be  endowed. 
The  land  in  which  she  now  demands  her  dower  has  been  put  into  the 
state  which  subjects  it  to  dower,  only  by  the  labor  and  expense  of 
the  tenant,  and  those  under  whom  he  claims.  This  cannot  be  to  the 
benefit  of  the  widow  of  him  who  left  it  without  having  done  anything 
to  change  its  natural  state. 

The  case  of  Nash  v.  Boltwoodwas  determined  before  we  had  reports 
of  the  decisions  <>f  this  court,  and  we  do  not  know  the  grounds  on 


II.   3-]  HOMESTEAD.  711 

which  it  was  decided.  A  widow  is  dowable  of  a  lot  of  wild  land, 
which  was  used  by  her  husband,  in  connection  with  his  dwelling 
house  and  cultivated  land,  for  the  purpose  of  procuring  fuel  and 
timber  for  repairs.  White  v.  IVillis,  7  Pick.  143.  But  not  of  mines 
unopened    at    the   death   of   her   husband.      Coates   v.    O/ieevers,    1 

Cowen,  460. 

Demandant  nonsuit.1 


e.  Homestead. 

HELM  v.  HELM. 

11   Kansas,  ig.— 1873. 

Kingman,  C.  J.  — This  case  came  up  from  a  decision  of  the  Dis- 
trict Court  sustaining  a  demurrer  to  the  petition  of  plaintiff  in  error. 
It  appears  from  the  petition  that  plaintiff  in  error  and  the  defendant, 
James  M.  Helm  were  married  on'  the  15th  of  April,  187 1;  that 
James  M.  Helm  was  then  the  owner  of  eighty  acres  of  land,  upon 
which  the  husband  and  wife  resided,  and  which  was  their  homestead. 
On  the  17th  of  June  thereafter,  and  while  they  were  residing  on  said 
land  as  their  homestead,  the  land  was  conveyed  to  William  Helm  for 
the  consideration  of  nine  hundred  dollars,  by  deed  signed  by  husband 
and  wife;  and  two  days  thereafter  the  husband  abandoned  his  wife. 
She  seeks  to  have  the  deed  set  aside  on  two  grounds.  One  is,  that 
her  signature  was  procured  by  the  false  representations  of  the 
defendant  that  her  husband  had  purchased  other  lands  in  Shawnee 
county  for  a  home;  the  other  is,  that  her  signature  was  procured  by 
the  threats  and  menaces  of  the  defendants,  they  threatening  her  life 
unless  she  would  sign  the  deed,  and  in  apprehension  of  great  danger 
if  she  did  not  sign  the  deed,  she  did  sign  it.  The  relief  sought  cer- 
tainly could  not  be  granted  because  the  husband  made  representa- 
tions that  were  false  to  induce  his  wife  to  sign  the  deed.  If  she  relied 
on  them,  it  was  at  her  peril  alone. 

The  second  ground  we  think  is  sufficient  to  authorize  the  relief 
asked.  Our  homestead  provision  is  peculiar.  The  homestead 
cannot  be  alienated  without  the  joint  consent  of  the  husband  and 
wife.  The  wife's  interest  is  an  existing  one.  The  occupation  and 
enjoyment  of  the  estate  is  secure  to  her  against  any  act  of  her  hus- 
band or  of  creditors  without  her  consent  If  her  husband  abandons 
her,  that  use  remains  to  her  and  the  family.  With  or  without  her  hus- 
band, the  law  has  set  this  property  apart  as  her  home.  It  may  be 
difficult  to  define  the  estate,  but  it  is  one  nevertheless.     It  is  not 

1  For  the  New  York  statute  as  to  assignment  of  dower,  see  Code  Civil  Proc. 
§§1596-1625. -Ed. 


712      ESTATES   AS   TO    QUANTITY   AND    QUALITY.       [PT.  IV.  CII.  L 

like  dower.  Dower  is  only  a  possible  estate,  an  inchoate  interest  that, 
depending  on  uncertain  events,  the  wife  may  never  enjoy.  That  the 
wife's  right  under  our  homestead  laws  is  an  existing  interest, 
probably  none  will  deny.  She  then  having  been  compelled  to  sign 
away  the  interest  by  duress  has  a  right  to  come  into  court  and  have 
that  act  declared  null  and  void,  so  that  her  rights  shall  not  be  lost 
by  the  illegal  conduct  of  those  who  attempted  to  profit  by  their  vio- 
lence. When  her  signature  is  declared  void,  the  law  comes  in  and 
disposes  of  the  deed  made  by  her  husband  without  her  consent. 
§  i,  page  473,  Gen.  Stat.  If  the  wife  could  not  maintain  this  action, 
then  an  estate,  to  the  immediate  enjoyment  of  which  she  is  entitled, 
and  which  might  finally  become  hers  absolutely,  might  be  wholly 
lost.  For  the  record  shows  that  she  has  parted  with  her  estate.  It 
may  well  be  questioned  whether  an  innocent  purchaser  would  not 
hold  the  land  against  her  who  had  stood  silent  while  he  purchased 
for  a  full  consideration.  The  land  which  the  record  showed  belonged 
to  William  Helm.  Having  then  an  estate  in  the  land,  with  a  right 
to  immediate  enjoyment,  and  her  signature  procured  by  threats 
being  not  that  consent  that  the  law  requires  for  the  transmission  of 
the  homestead,  it  seems  to  us  that  the  demurrer  ought  not  to  have 
been  sustained.1 

1  For  the  New   York  statute  as  to  homesteads,  see  Code  Civ.  Proc.  §§  1397- 
1404.  —  Ed. 


CHAPTER  II. 

Estates   as   to   Quantity  and  Quality:  Estates  Less 
Than  Freehold. 

I.  Nature  of  leaseholds  in  general. 

i.   Real  or  Personal  Interests  in  Land. 

BREWSTER  v.  HILL. 

i  New  Hampshire,  350.  —  181S. 
{Reported  herein  at  p.  53.  ]' 


2.  Leaseholds  Are  to  be  Distinguished  From  — 
a.  Cases  in  which  occupant  of  land  is  in  as  servant  of  owner. 

KERRAINS  v.  PEOPLE. 
60  New  York,  221.  —  1875. 

Error  to  review  a  judgment  sustaining  a  verdict  convicting  plain- 
tiff in  error  of  assault  with  intent  to  kill. 

Church,  Ch.  J.  ■ — The  principal  question  of  law  contested  on  the 
trial,  and  elaborately  argued  in  this  court  is,  whether  the  relation 

1  See  also  Goodivin  v.  Goodwin,  supra,  p.  8,  and  Northern  Bank  of  Kentucky, 
supra,  p.  10.  In  some  of  the  States  terms  for  years  of  long  duration  are  under 
some  circumstances  or  for  some  purposes  regarded  as  realty.  The  Massachu- 
setts statute  is  as  follows:  "  Section  1.  When  land  is  demised  for  the  term  of 
one  hundred  years  or  more,  the  term  shall,  so  long  as  fifty  years  thereof 
remain  unexpired,  be  regarded  as  an  estate  in  fee  simple  as  to  everything  con- 
cerning the  descent  and  demise  thereof  upon  the  decease  of  the  owner,  the 
right  of  dower  therein,  the  estate  in  lieu  of  dower,  the  sale  thereof  by  execu- 
tors, administrators,  guardians,  or  trustees,  the  levying  of  executions  thereon, 
and  the  redemption  thereof  where  mortgaged  or  when  taken  on  execution,  and 
whoever  holds  as  lessee  or  assignee  under  such  a  lease  shall,  so  long  as  fifty 
years  of  the  term  are  unexpired,  be  regarded  as  a  freeholder  for  all  purposes." 
Mass.  Pub.  Stat.  (1882-7),  ch.  121.  By  §  2,  Id.,  in  case  dower  is  assigned  out 
of  such  a  term  the  widow  must  pay  to  the  owner  of  the  unexpired  residue  of 
the  term  one-third  of  the  rent  reserved  in  the  lease  under  which  the  husband 
held   the  term.  —  Ed. 

[713] 


714      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

of  master  and  servant,  or  landlord  and  tenant,  existed  between  the 
prisoner  and  the  prosecutor,  Mr.  Son,  in  respect  to  the  house  occu- 
pied by  the  former.  Although  not  decisive  of  the  guilt  or  innocence 
of  the  prisoner,  the  determination  of  the  question  had  properly  a 
material  influence. 

If  the  relation  of  master  and  servant  existed  it  would  follow  that 
the  legal  possession  of  the  house  was  in  the  prosecutor,  and  he  had 
the  legal  right  to  remove  the  furniture  and  goods  therein,  and  to 
employ  the  necessary  force  for  that  purpose;  and  that  the  defendant 
would  not  be  justified  in  using  force  to  prevent  it.  And  yet,  if  the 
acts  of  the  prosecutor  were  of  such  a  threatening  character,  by  the 
use  of  a  pistol  or  other  deadly  weapon,  that  the  prisoner  believed, 
and  had  reason  to  believe,  that  his  life  was  in  imminent  danger,  he 
might  be  justified  in  using  the  necessary  means  to  avert  it.  On  the 
other  hand,  if  the  prisoner  was  holding  the  house  as  a  tenant,  and 
had  a  lawful  right  to  defend  his  possession,  and  his  property,  by  the 
use  of  proper  and  necessary  means,  yet,  if  the  force  used  was 
unnecessary  or  excessive,  either  in  amount  or  the  kind  of  weapons 
employed  under  the  circumstances  presented,  and  after  making  due 
allowance  for  provocation  and  irritation,  he  might  still  be  amenable 
to  a  criminal  prosecution. 

The  court  charged  the  jury  that  the  prisoner  occupied  the  house 
as  a  servant,  and  not  as  a  tenant;  and  hence  that  the  prosecutor  had 
the  legal  possession. 

The  defendant  stated  the  contract  to  be,  that  he  was  to  work  for 
Mr.  Son  a  year  at  thirteen  shillings  a  day,  and  have  the  use  of  the 
house  he  lived  in  and  garden  for  that  period.  The  prosecutor  stated 
it  substantially  the  same.  He  said:  "  I  made  a  bargain  with  him 
for  a  year,  if  he  and  I  could  agree,  I  was  to  pay  him  thirteen  shillings 
a  day,  and  he  was  to  have  a  house  furnished  him."  There  was  no 
dispute  but  that  the  defendant  was  to  have  the  house  in  which  he 
then  resided.  It  does  not  appear  whether  the  wages  were  less  by 
reason  of  furnishing  the  house,  or  whether  any  or  what  allowance 
was  intended  on  that  account.  Nor  does  it  distinctly  appear  whether 
a  residence  in  that  particular  house  was  necessary  to  the  proper  dis- 
charge of  the  duties  of  the  defendant.  If  the  occupation  is  connected 
with  the  service,  or  if  it  is  required,  expressly  or  impliedly,  by  the 
employer  for  the  necessary  or  better  performance  of  the  service, 
then  it  is  for  his  benefit,  and  he  continues  in  possession.  Such  was 
clearly  the  case  of  Haywood  v.  Miller,  3  Hill,  90,  where  a  farmer 
hired  a  man  and  his  wife  to  work  a  farm  for  wages.  The  occupation 
of  the  house  was  necessary  to  the  performance  of  the  service;  and 
The  People   v.    Annis,   45    Barb.    304,    was    substantially   the    same, 


I.  2.]  NATURE   OF   LEASEHOLDS    IN    GENERAL.  71 5 

although  I  am  unable  to  agree  with  the  learned  judge  who  delivered 
the  opinion  in  that  case,  that  immediately  upon  the  termination  of 
the  service  a  tenancy  at  will,  or  by  sufferance,  springs  up.  In  order 
to  have  that  effect  the  occupancy  must  be  sufficiently  long  to  war- 
rant an  inference  of  consent  to  a  different  holding.  Any  consider- 
able delay  would  be  sufficient,  but  I  can  see  no  principle  which  would 
change  the  occupant  eo  instanti,  from  a  mere  licensee  to  a  tenant. 
The  employer  should  resume  control  of  his  property  within  a  reason- 
able time  or  consent  would  be  inferred.  Whether  this  time  is  a  day 
or  a  week  may  depend  upon  circumstances.  In  Doyle  v.  Gibbs,  6 
Lans.  1S0,  the  consent  of  the  employer  that  the  employed  might 
remain  until  his  wife  recovered  from  an  illness,  was  held  not  to 
amount  to  a  consent. 

The  circumstance  that  the  right  of  occupation  terminates  with  the 
abrogation  of  the  contract  of  service,  by  consent  or  by  the  discharge 
of  the  servant,  is  not  decisive.  The  question  is,  what  was  the 
character  of  the  holding  under  the  contract?  If  that  was  a  tenancy, 
then  the  party  holding  over  would  be  a  tenant  at  will,  and  the  land- 
lord would  not  be  justified  in  entering  with  strong  hand.  So,  while 
a  deduction  from  wages  of  a  specified  sum  for  the  use,  or  the  absence 
of  such  an  arrangement,  would  be  a  material  circumstance,  it  would 
not  be  in  all  cases  conclusive  either  way.  The  question  depends 
upon  the  nature  of  the  holding,  whether  it  is  exclusive  and  inde- 
pendent of,  and  in  no  way  connected  with  the  service,  or  whether  it 
is  so  connected,  or  is  necessary  for  its  performance.  And  this,  I 
think,  is  the  result  of  all  the  cases.  The  question  has  often  arisen 
in  England,  under  the  poor  laws,  to  determine  what  occupation 
would  confer  a  settlement,  the  courts  recognizing,  as  controlling  the 
distinction  between  an  occupation  as  a  tenant  or  as  a  servant.  R. 
v.  Minister,  3  M.  &  S.  276;  R.  v.  Kelstern,  5  Id.  136;  R.  v.  Chesnut, 
iB,  &  A.  473;  R.    v.    Miikridge,    1    T.  R.  598;  R.  v.  Langriville,  10 

B.  &  C.  899;  R.  v.  Benneworth,  2  Id.  755.  The  case  of  Hughes  v. 
Chatham,  5  M.  &  G.  54,  arose  under  the  reform  act,  requiring  a 
registry  of  voters,  the  statute  requiring  that  the  person  should 
occupy  as  owner  or  tenant.  The  facts  were,  that  a  master  rope- 
maker  in  a  royal  dockyard  had,  as  such,  a  house  in  the  dockyard  for 
his  residence,  of  which  he  had  the  exclusive  use,  without  paying 
rent,  as  part  remuneration  for  his  services,  no  part  of  it  being  used 
for  public  purposes.  If  he  had  not  had  it,  he  would  have  had  an 
allowance  for  a  house,  in  addition  to  his  salary.  The  case  was 
elaborately  argued,  and  thoroughly  considered,  and  it  was  held,  that 
the  rope-maker  occupied  as  a  tenant,  and  not  as  a  servant.      Findal, 

C.  J.,  in  delivering  the  opinion  of  the  court,  said:     "  There  is  no 


yi6      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

inconsistency  in  the  relation  of  master  and  servant  with  that  of 
landlord  and  tenant.  A  master  may  pay  his  servant  by  conferring 
on  him  an  interest  in  real  property,  either  in  fee,  for  years,  or  at 
will,  or  for  any  other  estate  or  interest,  and  if  he  do  so  the  servant 
then  becomes  entitled  to  the  legal  incidents  of  the  estate,  as  much 
as  if  it  were  purchased  for  any  other  consideration.  .  .  .  And, 
as  there  is  nothing  in  the  facts  stated  to  show  that  the  claimant  was 
required  to  occupy  the  house  for  the  performance  of  his  services, 
or  did  occupy  it  in  order  to  their  performance,  or  that  it  was  condu- 
cive to  that  purpose  more  than  any  house  which  he  might  have  paid 
for  in  any  other  way  than  by  his  services;  and  as  the  case  expressly 
finds  that  he  had  the  house  as  part  remuneration  for  his  services,  we 
cannot  say  that  the  conclusion  at  which  the  revising  barrister  has 
arrived  is  wrong." 

I  have  cited  the  language  of  the  court,  because  it  lays  down  con- 
cisely the  correct  rule  for  determining  the  question  involved  in  this 
class  of  cases  The  question  in  the  case  before  us  is  presented 
somewhat  differently.  Each  party  relied  upon  the  terms  of  the  con- 
tract, with  only  the  additional  facts  that  the  house  was  a  part  of  the 
mill  property,  and  had  been  occupied  for  several  years  previously  by 
the  prisoner  while  engaged  as  a  laborer  in  the  mill.  There  was  no 
request  to  submit  the  facts  to  the  jury  to  determine  whether  the 
house  was  occupied  to  enable  the  prisoner  the  better  to  perform  the 
service  in  which  he  was  engaged;  or,  in  other  words,  whether  it  was 
not  occupied  as  an  appendage  to  the  mill,  and  really  for  the  benefit 
of  the  owner;  nor  was  there  any  evidence  of  an  allowance  for  rent, 
but  it  was  left  to  the  court,  upon  the  contract  and  facts  before  stated, 
to  be  determined  as  a  question  of  law,  and,  in  my  judgment,  the 
court  decided  correctly,  that  the  defendant  occupied  as  a  servant, 
and  not  as  a  tenant.  The  inference  from  these  facts  is  reasonable, 
if  not  irresistible,  in  the  absence  of  any  provision  for  an  allowance 
for  rent,  that  the  house  was  intended  to  be  occupied  by  an  employe 
for  the  benefit  of  the  owner  in  carrying  on  the  mill.  The  case  thus 
presented  is  analogous  to  that  of  a  person  employing  a  coachman  or 
gardener,  and  allowing  or  requiring  him  to  reside  in  a  house  pro- 
vided for  that  purpose  on  the  premises;  or  a  farmer  who  hires  a 
laborer  for  wages,  to  work  his  farm,  and  live  in  a  house  upon  the 
same.  In  these  cases  the  character  of  the  holding  is  clearly  indicated 
by  the  mere  statement  of  facts.  It  is  not  impossible  that  other 
facts  may  exist  to  strengthen  or  weaken  the  inference  that  the 
prisoner  occupied  as  a  servant,  and  not  as  a  tenant,  but  from  the 
facts  proved  there  was  no  error  in  holding  that  he  occupied  as  a 
servant.      Both   parties  regarded   it  as  a  question  of  law  upon  sub- 


I.  2.]  NATURE   OF   LEASEHOLDS    IN    GENERAL.  717 

stantially  undisputed  facts,  although  there  are  cases  where  the 
character  of  the  holding  is  so  uncertain,  from  conflicting  evidence 
or  inferences  which  may  be  drawn,  as  to  render  it  proper  to  submit 
the  question  to  a  jury.     3  M.  &  S.  790. '     *     *     * 


b.    Cases  of  contracts  for  "lodgings." 

WHITE  v.  MAYNARU. 

in  Massachusetts,  250.  —  1S72. 

Gray,  J.  — This  is  an  action  by  the  keeper  of  a  boarding  house 
against  a  lodger  for  breach  of  an  oral  contract,  by  which  the  plain- 
tiff agreed  to  provide  the  defendant  and  his  family  of  four  persons 
with  board,  and  with  three  specified  rooms  as  lodging,  in  her  house, 
and  to  light  and  heat  such  rooms,  from  November  26,  1866,  to  May 
1,  1S67,  at  the  weekly  rate  of  $75,  and  the  defendant  agreed  to 
board  and  lodge  with  the  plaintiff  accordingly. 

The  defendant  at  the  trial  contended  that  this  agreement  was  for 
an  interest  in  or  concerning  lands,  within  the  statute  of  frauds,  and 
created  no  more  than  an  estate  at  will.  Gen.  Sts.,  c.  105,  §  1,  cl. 
4;  c.  S9,  §  2.  His  omission  to  plead  the  statute  of  frauds,  not  hav- 
ing been  objected  to  at  the  trial,  when  the  answer  might  have  been 
amended,  cannot  now  be  availed  of  by  the  plaintiff.  Jones  v.  Sisson, 
6  Gray,  288.  But  we  are  of  opinion  that  the  ruling  of  the  Superior 
Court  was  right,  and  that  the  agreement  declared  on  was  not  for 
any  interest  in  lands. 

The  opinions  of  eminent  judges,  in  cases  under  English  statutes 
giving  the  elective  franchise  to  the  sole  occupiers  of  houses  of  a 
certain  value,  assume  it  as  unquestionable  that  a  mere  lodger  in  the 
house  of  another  is  not  a  tenant.  In  Fludier  v.  Lombe,  Cas.  Temp. 
Hardw.  307,  Lord  Hardwicke  held  that  a  man  who  let  rooms  to 
lodgers  was  still  the  sole  occupier  of  the  house;  and  said:  "A 
lodger  was  never  considered  by  any  one  as  an  occupier  of  a  house. 
It  is  not  the  common  understanding  of  the  word;  neither  the  house, 
nor  even  any  part  of  it,  can  be  properly  said  to  be  in  the  tenure  or 
occupation  of  the  lodger."  And  this  definition  was  cited  with 
approval  by  Chief  Justice  Erie  in  Cook  v.  Humber,  11  C.  B.  (N.  S.) 
^^,  46.  So  in  Brewer  v.  M' ' Gowen,  L.  R.  5  C.  P.  239,  it  was  held  that 
the  owner  or  tenant  of  a   dwelling  house  was  not  a  joint  occupier 

1  The  judgment  below  was  reversed,  however,  on  account  of  an  error  in 
rejecting  certain  testimony.  —  Ed. 


718      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

with  a  lodger  to  whom  he  let  the  exclusive  use  of  a  bed  room  and 
the  joint  use  of  a  sitting  room;  and  Mr.  Justice  Willes,  after  observ- 
ing that  the  lodger  "  clearly  was  not  a  joint  occupier  of  the  room  in 
which  he  took  his  meals,"  added:  "  And  with  respect  to  the  bed 
room,  he  clearly  had  not  an  occupation  as  owner  or  tenant,  but  only 
an  occupation  as  lodger. 

In  like  manner,  under  the  English  valuation  and  tax  acts,  it  has 
been  held  that,  in  order  to  constitute  a  tenancy,  there  must  be  a 
putting  of  a  lessee  into  the  exclusive  occupation  of  the  apartment, 
and  not  a  mere  admission  of  a  common  lodger  or  inmate,  the  land- 
lord retaining  the  legal  possession  of  the  whole  house.  Smith  v.  St. 
Michael,  3  E.  &  E.  383;  Stamper  v.  Overseers  of  Sunderland,  L.  R. 
3  C.  P.  388;    The  Queen  v.  St.  George's  Union,  L.  R.  7  Q.  B.  90. 

It  was  decided  by  Lord  Ellenborough,  and  admitted  by  Barons 
Parke  and  Alderson,  that  a  covenant,  in  a  lease  of  a  coffee-house  in 
London,  not  to  lease  or  underlet  the  premises  or  any  part  thereof, 
was  not  broken  by  permitting  a  man  to  lodge  for  a  year  in  a  par- 
ticular room,  "  of  which  he  had  exclusive  possession,"  unless  under 
a  distinct  demise  of  the  room  so  as  to  enable  him  to  maintain  tres- 
pass. Doe  v.  Laming,  4  Camp.  73;  Greenslade  v.  Tapscott,  1  C,  M. 
&  R.  55;  s.  c.  4  Tyrwh.  566.  An  entire  floor,  or  a  series  of  rooms, 
or  even  a  single  room,  may  doubtless  be  let  for  lodgings,  so  sepa- 
rated from  the  rest  of  the  house,  as  to  become  in  fact  and  in  law  the 
separate  tenement  of  the  lessee.  Newman  v.  Anderton,  2  B.  &  P. 
N.  R.  224;  Fenn  v.  Grafton,  2  Bing.  N.  C.  617;  s.  c.  3  Scott,  56; 
Monks  v.  Dykes,  4  M.  &  W.  567;  Swain  v.  Mizner,  8  Gray,  182.  But 
in  such  a  case,  as  observed  by  this  court  in  Swaine  v.  Mizner,  he  is 
"  a  housekeeper,  and  not  a  lodger  only."  In  Monks  v.  Dykes,  it  was 
held  that  a  lodger,  occupying  one  room  in  a  house,  the  woman  who 
owned  the  house  residing  therein  and  keeping  the  key  of  the  outer 
door,  had  no  such  occupation  of  the  room  that  he  could  maintain 
trespass  against  a  stranger  intruding  into  the  room;  and  Baron  Parke 
said  :  "  I  think  that  neither  in  law  nor  in  common  sense  can  a  man 
be  described  as  being  in  possession  of  a  dwelling  house,  when  he  is 
a  mere  lodger." 

It  has  indeed  been  held  in  two  English  cases,  cited  for  the 
defendant,  that  agreements  to  take  certain  apartments  in  a  house 
as  lodgings  at  a  yearly  rent  were  within  the  statute  of  frauds. 
Intnan  v.  Stamp,  1  Stark.  12;  Edge  v.  Strafford,  1  Tyrwh.  293;  s.  c. 
1  C.  &  |.  391.  But  there  is  nothing  in  either  of  the  reports  to  show 
that  the  rooms  were  in  a  boarding  house;  and,  as  suggested  by  the 
judges  in  Wright  v.  Stavert,  2  E.  &  E.  721,  each  appears  to  have 
a  <  ase  of  an  agreement,  which,  if  perfected  by  entry,   would 


I.  2.]  NATURE   OF    LEASEHOLDS   IN   GENERAL.  719 

have  amounted  to  an  actual  demise,  and  would  have  given  the  occu- 
pant all  the  possessory  rights  of  a  tenant. 

In  Wright  v.  Stavert,  on  the  other  hand,  it  was  held  that  an  oral 
agreement  to  pay  a  certain  sum  yearly  for  the  board  and  lodging  of 
a  gentleman  and  his  servant  in  a  boarding  house,  terminable  by  a 
quarter's  notice  on  either  side,  was  not  an  agreement  for  any  interest 
in  real  estate;  and  Chief  Justice  Cockburn  said  that  to  hold  such  a 
case  to  be  within  the  statute  of  frauds  would  lead  to  most  absurd 
and  inconvenient  consequences.  The  only  distinction  between  that 
case  and  the  present  is  that  it  states  one  of  the  terms  of  the  agree- 
ment to  have  been  that  "  the  defendant  was  to  have  no  exclusive 
right  to  or  interest  in  any  particular  rooms,  but  to  be  considered 
simply  as  a  boarder  and  an  inmate." 

But  in  the  similar  case  of  Wilson  v.  Martin,  1  Denio,  602,  it  is 
implied  in  the  statement  of  the  case,  and  expressed  in  the  opinion, 
that  the  agreement,  which  was  held  to  create  no  lease,  and  no  inter- 
est in  lands,  was  for  the  use  of  particular  rooms,  as  well  as  for  board, 
in  the  plaintiff's  boarding  house;  and  Mr.  Justice  Bronson,  in 
delivering  judgment,  said:  "  This  was  nothing  more  than  an  agree- 
ment for  board  and  lodging,  with  a  designation  of  the  particular 
rooms  which  the  defendant  was  to  occupy.  It  was  not  a  contract  for 
the  hiring  and  letting  of  real  estate.  When  one  contracts  with  the 
keeper  of  a  hotel  or  boarding  house  for  rooms  and  board,  whether 
for  a  week  or  a  year,  the  technical  relation  of  landlord  and  tenant 
is  not  created  between  the  parties.  The  lodger  acquires  no  interest 
in  the  real  estate.  If  he  is  turned  out  of  the  rooms  before  the  time 
expires,  he  cannot  maintain  ejectment;  and  while  he  remains  the 
hotel  keeper  cannot  get  his  pay  by  distraining  for  rent  in 
arrear.' 

In  the  case  at  bar,  tne  declaration  alleged,  and  the  evidence  intro- 
duced at  the  trial  tended  to  prove,  an  ordinary  agreement  for  board 
and  lodging  in  the  plaintiff's  boarding  house,  by  which  the  plaintiff, 
as  keeper  of  the  boarding  house,  retained  the  legal  possession, 
custody  and  care  of  the  whole  house  and  of  every  room  therein. 
The  defendant  took,  by  reason  of  the  fact  that  the  rooms  in  which 
he  and  his  family  were  to  lodge  were  specified  in  the  agreement,  no 
greater  legal  right  in  those  rooms,  than  he  would,  if  they  had  not 
been  so  specified,  have  taken  in  the  house.  There  was  no  evidence 
to  warrant  the  inference  of  an  agreement  that  the  defendant  should 
have  any  such  exclusive  possession  of  the  rooms  specified  as  would 
enable  him  to  maintain  any  action  founded  on  that  possession, 
either  against  the  plaintiff  or  against  a  stranger.  The  onjy  rights 
of  action  between  the  parties  are  upon  the  agreement  itstfff.     Wright 

f    'Sft 


720      ESTATES   AS    TO    QUANTITY    AND    QUALITY.     [PT.  IV.  CH.  II. 

v.  Stavert,  2  E.  <Sc  E.  721,  727;  Underwood  v.  Burrows,  7  C.  &  P.  26; 
McCrea  v.  Marsh,  12  Gray,  211. 

The  instructions  requested  were,  therefore,   rightly  refused,  and 
no  exception  appears  to  have  been  taken  to  the  instructions  given. 

Exceptions  overruled. 


c .   Cases  of  cultivating  a  crop  on  shares} 
CASWELL  v.  DISTRICH. 
15  Wendell  (N.  Y.),  379.  —  1836. 

Assumpsit  for  rent.  Plaintiff's  testator  agreed  in  writing  to  let 
Districh  have  his  farm  for  one  year,  the  latter  to  sow  oats  and  give 
testator  one-third  in  the  half  bushel,  to  sow  corn  and  give  one-third 
in  the  basket,  etc.,  etc.  Plaintiff  proved  quantities  of  grain  sowed 
and  rested.  Defendant  asked  for  a  non-suit  on  the  ground  that 
the  instrument  was  not  a  lease  but  made  the  parties  to  it  tenants  in 
common  of  the  crop.     Non-suit  granted.     Plaintiff  appeals. 

By  the  Court,  Nelson,  J.  —  The  agreement  between  the  parties  was 
a  letting  of  the  premises  upon  shares,  and,  technically  speaking,  was 
not  a  lease.  8  Johns.  R.  151 ;  3  Id.  221;  2  Id.  421,  n. ;  8  Cowen,  220. 
There  is  nothing  which  indicates  that  the  stipulation  for  a  portion 
of  the  crops  was  by  way  of  rent;  but  the  contrary.  The  shares 
were  of  the  specific  crops  raised  upon  the  farm.  It  is  very  material 
to  the  landlord,  and  no  injury  to  the  tenant,  that  this  view  of  the 
contract  should  be  maintained,  unless  otherwise  clearly  expressed, 
for  then  the  landlord  has  an  interest  to  the  extent  of  his  share  in 
the  crops.  If  it  is  deemed  rent,  the  whole  interest  belongs  to  the 
tenant  until  a  division.  Where  a  farm  is  let  for  a  year  upon  shares, 
the  landlord  looks  to  his  interest  in  the  crop  as  his  security,  and 
thereby  is  enabled  to  accommodate  tenants,  who  otherwise  would 
not  be  trusted  for  the  rent. 

This  case  is  clearly  distinguished  from  that  of  Stewart  v.  Dougherty, 
9  Johns.  R.  108.  There  the  court,  from  the  correspondence  between 
the  phraseology  of  the  instrument  and  the  terms  usual  in  leases  in 
the  reservation  of  rent,  came  to  the  conclusion  that  the  proportion 
of  the  crops  specified  in  the  agreement  was  intended  as  payment  of 
rent  in  kind,  and  that,  therefore,  the  whole  interest  belonged  to  the 
tenant.     If  my  conclusion  be  correct,  then  the  parties  were  tenants 

1  In  some  cases  of  this  kind  there  is  a  true  lease  —  rent  paid  in  kind.  In 
some  the  cropper  is  a  servant  —  paid  in  produce;  in  other  cases  the  parties  are 
tenants  in  common  of  the  crop.  —  Ed. 


I.  2.J       NATURE  OF  LEASEHOLDS  IN  GENERAL.         721 

in  common  in  the  crops,  and  as  the  plaintiff  stood  in  the  place  of  her 
testator,  she  was  not  entitled  to  sustain  her  action,  and  the  Common 
Pleas  did  right  to  grant  a  nonsuit. 

Judgment  affirmed. 


d.   Cases  of  leases  in  fee  reserving  a  fee-farm  rent. 

VAN  RENSSELAER  v.  HAYS.1 
19  New  York,  68.  —  1859. 
[Reported  herein  at  p.  81.] 


INGERSOLL  v.  SERGEANT. 

1  Wharton  (Pa.),  336.  —  1836. 
[Reported  herein  at  p.  86.] 


e.   Agreement  for  a  lease. 
Ames,  J.,  in  KABLEY  v.  WORCESTER  GAS  LIGHT  COMPANY. 

102  Massachusetts,  392.  —  1869. 

The  question  whether  a  written  instrument  is  a  lease,  or  only  an 
agreement  for  a  lease,  depends  on  the  intention  of  the  parties  to  be 
collected  from  the  whole  instrument.  Bacon  v.  Bowdoin,  22  Pick. 
401.  The  form  of  expression  "  we  agree  to  rent  or  lease  "  is  far 
from  being  decisive  upon  this  question,  and  does  not  necessarily 
import  that  a  lease  is  intended  to  be  given  at  a  future  day.  On  the 
contrary  those  words  may  take  effect  as  a  present  demise,  and  the 
words  "agree  to  let,"  have  been  held  to  mean  exactly  the  same 
thing  as  the  word  "  let,"  unless  there  be  something  in  the  instrument 
to  show  that  a  present  demise  could  not  have  been  in  contemplation 
of  the  parties.  Doe  v.  Benjamin,  9  Ad.  &  El.  644.  The  test  seems 
to  be  that  if  the  agreement  leaves  nothing  incomplete  it  may  operate 
as  a  present    demise.     Doe  v.  Ries,  8  Bing.    178.     The    agreement 

1  "  No  lease  or  grant  of  agricultural  lands,  for  a  longer  period  than  twelve 
years,  hereafter  made,  in  which  shall  be  reserved  any  rent  or  service  of  any 
kind,  shall  be  valid."  Const.  N.  Y.,  art.  I.,  §  13.  This  appears  for  the  first 
time  in  the  constitution  of  1846.  As  to  a  lease  of  such  lands  for  other  than 
agricultural  purposes,  see  Ode//  v.  Duranl,  62  N.  Y.  524.  As  to  what  is  meant 
here  by  "  rent,"  see  Parse!/  v.  Stryker,  41  N.  Y.  480.  —  Ed. 
law  of  prop,  in  land  —  46 


722      ESTATES   AS    TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

relied  upon  by  the  plaintiffs  contains  no  stipulation  for  a  lease  at  any- 
future  time,  and  there  is  nothing  to  show  that  any  more  formal 
document  was  contemplated.  It  is  not  prospective  or  executory, 
and  it  does  not  indicate  that  anything  remained  to  be  done  on  the 
part  of  the  plaintiffs.  It  gave  to  the  defendants  an  immediate  right 
of  possession.  Staniforth  v.  Fox,  7  Bing.  590;  Doe  v.  As/ibumer,  5  T. 
R  163;  Jenkins  v.  Eldredge,  3  Story,  325.  It  creates  a  term,  begin- 
ning with  the  delivery  of  the  instrument,  and  ending  upon  the  com- 
pletion of  the  gas-holder  in  a  reasonable  time;  and  it  stipulates  for 
a  rent,  the  amount  of  which  was  to  be  determined  by  arbitration. 
So  far  as  the  plaintiffs  are  concerned,  it  has  all  the  essential  qualities 
of  a  present  demise.  The  report  finds  that  the  agreement  which  we 
have  considered  as  effectively  a  lease,  was  delivered  to  the  defend- 
ants, and  was  accepted  by  them.  Under  such  circumstances,  their 
liability  to  pay  rent  is  not  qualified,  or  taken  away,  by  proof  that 
they  never  actually  occupied  the  premises.  It  is  enough  that  they 
accepted  the  conveyance,  which  gave  them  the  right  of  immediate 
and  exclusive  occupation.  The  law  would  imply,  from  such  accept- 
ance, a  promise  to  comply  with  the  terms  of  the  lease  Guild  v.  Leon- 
ard, 18  Pick.  511,  516;  Goodwin  v.  Gilbert,  9  Mass.  510;  and  such  a 
promise  is  not  within  the  statute  of  frauds.  Felch  v.  Taylor,  13 
Pick.  133.  Under  that  implied  promise  the  defendant  would  be 
responsible,  even  though  they  refuse  to  take  possession  of  the  prop- 
erty. Taylor,  Landl.  &  Ten.,  §  176.  They  hold  the  premises  whether 
they  occupy  them  or  not  Pinero  v.  Judson,  6  Bing.  206;  and  such 
holding  constitutes  legal  or  constructive  possession. 


f.   An  inter  esse  termini. 

BECAR  v.  FLUES. 
64  New  York,  518.  —  1876. 


Church,  Ch.  J.  —  From  the  facts  disclosed  in  this  case,  tne  loss 
occasioned  by  not  renting  the  premises,  by  either  of  the  parties,  was 
unnecessary.  The  evidence  tends  to  establish  that  the  defendant's 
testator,  in  February  or  March,  1874,  leased  the  premises  by  parol 
of  the  plaintiff,  by  her  son,  for  one  year  from  the  first  of  May  there- 
after, the  testator  then  being  in  possession  under  a  prior  lease.  The 
testator  died  in  April,  and  the  family  not  desiring  to  retain  the  house, 
the  defendant  gave  notice  that  they  would  not  retain  it,  and  on  the 
first  of  May  they  abandoned  the  possession  and  tendered  the  key, 
which  was  declined.     This  action  is  brought  for  three-quarters'  rent. 


I.  2.]  NATURE    OF    LEASEHOLDS   IN    GENERAL.  723 

The  defendant  proved  that  the  plaintiff  might  have  rented  the  house 
for  nearly  as  much  as  the  defendant's  testator  was  to  pay  for  the 
same.  A  verdict  was  directed  for  the  plaintiff.  It  is  claimed  by  the 
defendant  that  between  the  making  of  the  contract  and  the  time  for 
taking  possession,  the  contract  was  executory,  and  that  the  defendant 
having  refused  to  perform  it,  the  plaintiff  could  only  recover  the 
actual  damages,  which,  within  the  general  rule,  the  plaintiff  was 
bound  to  make  as  small  as  possible.  28  N.  Y.  72;  43  Id.  237. 
While  the  rule  of  law  invoked  is  well  settled,  I  feel  constrained  to 
hold  that  it  is  not  applicable  to  this  contract.  The  error  is  in  the 
position  that  this  was  an  executory  contract.  This  court  decided, 
in  Young  v.  Dafce,  5  N.  Y.  463, '  that  a  parol  lease  for  a  year,  to  com- 
mence infuiuro,  is  valid  and  obligatory.  Such  a  lease  vests  a  present 
interest  in  the  term.  It  is  assignable  before  entry,  and  the  lessee 
can  bring  ejectment  if  possession  is  withheld.  Whitney  v.  Allaire,  1 
N.  Y.  307,  and  authorities  cited.  The  same  principle  was  recog- 
nized in  Trull  v.  Granger,  8  N.  Y.  115.  It  was  there  held  that 
although  ejectment  would  lie,  the  tenant  might  also  bring  an  action 
for  damages  upon  the  implied  agreement  to  give  possession,  or  in 
tort  for  a  violation  of  duty.  If  the  landlord  could  not  rescind,  the 
tenant  could  not.  The  rights  and  liabilities  in  this  respect  are 
mutual.  Each  party  acted  upon  their  strict  legal  rights,  and  while 
the  result  we  can  see  will  operate  harshly  upon  the  defendant  and  the 
estate,  we  are  compelled  to  adjudge  the  law  as  we  find  it.  When 
the  plaintiff  refused  to  accept  this  recission,  the  defendant  still  held 
the  term,  and  was  responsible  for  the  rent  of  the  house.  The  lease, 
although  verbal,  is  as  binding  as  if  in  writing.  It  granted  in prcesenti 
a  term  of  one  year  in  the  premises,  which  the  testator  agreed  to  pay 
for.  It  is  like  the  sale  of  specific  personal  property  to  be  delivered. 
In  such  a  case  the  title  passes  to  the  vendee,  and,  of  course,  he  is 
liable  for  the  purchase-money.     *     *     * 

The  judgment  must  be  affirmed. 

1  Reported  below  at  p.  728.  — Ed. 


724      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

II.  Estates  for  years  or  "  terms." 

i.  The    Essential    Feature    of    a     Term  —  Certainty    as    to 
Commencement,  Duration  '  and  Termination. 

MURRAY  v.  CHERRINGTON. 

99  Massachusetts,  229.  —  1868. 

Action  to  recover  possession  of  a  dwelling  house.  Defendant  con- 
tends that  he  holds  the  premises  of  right  by  virtue  of  a  letter 
addressed  to  him  by  plaintiff,  of  which  the  material  part  is  as  follows: 
"  I  hereby  let  you  the  whole  of  my  house  on  Mercer  street  in  South 
Boston,  when  said  house  is  suitable  to  be  occupied  by  you,  for  a 
rent  of  four  hundred  and  eighty  dollars  per  annum,  *  *  *  but 
it  is  to  be  understood  that,  in  case  after  two  years  subsequent  to 
your  moving  into  said  house,  I  should  wish  to  live  in  the  house 
myself,  I  can  do  so,  and  that  then  you  may  still  retain,  if  you  wish 
to  do  so  [certain  rooms]  for  such  a  time  as  may  be  agreeable  to  us 
both."  Defendant  entered  under  the  letter  in  Sept.,  1866,  and  con- 
tinued in  possession  to  the  date  of  the  writ,  April,  1867.  There 
were  also  in  evidence  certain  receipts  for  rent.  The  court  refused 
to  rule  that  the  facts  constituted  a  valid  lease  for  the  term  of  two 
years  and  defendant  (Cherrington)  excepted. 

Foster,  J.  — *  *  *  We  are  also  of  opinion  that  the  ruling  of 
the  presiding  judge  was  correct,  that  the  terms  of  this  letter  did  not 
create  an  estate  for  years,  namely,  a  lease  for  two  years,  between 
the  parties.  The  duration  of  a  lease  for  years  must  be  certain;  this 
includes  both  its  commencement  and  termination.  It  may  be  con- 
ceded that  a  lease  for  years  may  begin  "  when  a  house  is  suitable  to 
be  occupied,"  according  to  the  maxim,  Id  certain  est  quod  certain 
reddi potest.  But  the  fatal  objection  remains  that  no  period  of  termin- 
ation is  fixed  by  this  letter.  A  leasehold  interest  for  an  uncertain 
and  indefinite  term  is  an  estate  at  will  only.  Shaw,  C.  J.,  in  Cheever 
v.  Pearson,  16  Pick.  271;  Bishop  of  Bath's  Case,  6  Co.  35;  Bac.  Ab. 
Lease,  L.  3.  It  is  indisputable  that  an  entry  by  the  lessee  under 
this  instrument  would  not  bind  him  to  remain  for  any  definite  period. 
He  could  terminate  his  tenancy  in  the  modes  provided  by  statute;  as 
to  him  there  is  no  term  of  certain  duration.  Consequently,  there 
can  be  none  as  to  the  landlord. 

The  proviso  that  after  two  years  from  the  commencement  of  the 
occupancy  the  landlord   may  live  in  the  house  if  he  wishes  to  do  so, 

1  For  a  limitation  on  the  length  of  a  term  in  certain  cases,  see  n.,  p.  721, 
supra.  —  Ed. 


II.   i.]  ESTATES    FOR   YEARS    OR   "TERMS."  J2$ 

and  that  then  the  tenant  may  still  retain,  if  he  wishes,  certain  rooms 
cannot  change  the  construction.  This  clause  has  no  tendency  to 
show  that  the  tenant  was  bound  to  remain  during  the  two  years. 

Exceptions  overruled.1 


a.  It  is  a  sale  of  the  land  for  such  fixed  period. 
FOWLER  v.  BOTT. 

6  Massachusetts,  63.  —  1809. 

Sewall,  J. — (After  stating  the  plaintiff's  demand,  the  several 
issues,  and  the  verdict.)  By  a  motion  in  arrest  of  judgment,  this 
question,  arising  upon  the  defendant's  third  plea,  is  to  be  decided 
by  the  court,  viz.,  whether,  after  a  destruction  by  fire  of  the  build- 
ings demised,  the  lessors,  without  rebuilding,  can  recover  their  rent. 

The  supposed  hardship  of  the  case  has  been  urged  upon  the  atten- 
tion of  the  court,  as  an  argument  for  the  defendants.  The  answer 
to  this  argument  is,  that  a  lease  for  years  is  a  sale  of  the  demised 
premises  for  the  term;  and,  unless  in  the  case  of  an  express  stipula- 
tion for  the  purpose,  the  lessor  does  not  insure  the  premises  against 
inevitable  accidents,  or  any  other  deterioration.  The  rent  is  in  effect 
the  price,  or  purchase  money,  to  be  paid  for  the  ownership  of  the 
premises  during  the  term;  and  their  destruction,  or  any  deprecia- 
tion of  their  value,  happening  without  the  fault  of  the  lessor,  is  no 
abatement  of  his  price,  but  entirely  the  loss  of  the  purchaser. 

Independently,  however,  of  the  general  reasoning,  which  has  been 
gone  into  upon  this  question,  the  law  applicable  to  the  case  at  bar 
has  been  long  settled.  In  the  case  of  Belfour  v.  Weston,  cited  for 
the  plaintiffs,  the  same  question  was  made  which  arises  in  this  case; 
but  the  Court  of  King's  Bench  refused  to  hear  an  argument  upon 
it,  being  of  opinion  that  the  point  had  clearly  been  determined  by 
the  authorities,  and  on  that  occasion  Justice  Buller  refers  to  the 
opinion  of  Lord  Mansfield  in  the  case  of  Pindar  v.  Ainsley  and Rutter, 
where  the  question  occurred  in  an  action  of  ejectment  brought  by 
the  tenant,  in  a  lease  for  years,  against  the  landlord,  for  the  posses- 
sion of  some  houses,  which,  having  been  burnt  down,  had  been 
rebuilt  by  the  landlord  during  the  term ;  but  after  acts  by  the  tenant, 
from  which  abandonment  of  the  lease  was  to  be  presumed.     Lord 

1  The  end  as-well  as  the  commencement  of  the  term  may  depend  on  some 
event  other  than  the  mere  lapse  of  time,  in  accordance  with  the  maxim  cited 
above.  See  Kabley  v.  Worcester  Gaslight  Co.,  p.  721,  supra.  But  an  estate 
depending  on  the  duration  of  human  life  is  of  course  a  life  estate.  —  Ed. 


726      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

Mansfield  stated,  as  an  established  principle  of  law,  that  the  conse- 
quence of  the  house  being  burnt  down  is,  that  the  landlord  is  not 
obliged  to  rebuild,  but  the  tenant  is  obliged  to  pay  the  rent  during 
the  whole  of  the  term. 

Nor  is  it  correct  to  say  that,  in  cases  of  this  nature,  the  courts  of 
equity  in  England  afford  relief.  The  cases  cited  in  the  argument 
for  the  defendant,  as  in  point  to  that  purpose,  are  noticed  by  Justice 
Buller  in  the  case  of  Doe  v.  Sandham;  and  he  speaks  of  them  as 
decisions  on  particular  circumstances,  and  not  upon  any  general 
principle  or  rule  of  equity. 

Upon  the  whole,  this  established  rule  of  law  determines  the  con- 
struction and  operation  of  the  contract  relied  on  by  the  plaintiffs  in 
the  case  at  bar.  When  words  of  the  same  import  are  used,  as  were 
employed  in  the  contracts  upon  which  the  decisions  cited  and 
referred  to  were  made,  the  intentions  of  the  parties  must  be  under- 
stood in  conformity  to  those  decisions,  even  admitting  the  supposed 
hardship  of  the  case,  or  severity  of  the  demand.  But  even  this 
objection  seems  inapplicable,  when  we  consider  the  lease  as  a  bargain 
and  sale  for  the  term  at  an  agreed  price.  When  there  is  no  covenant 
on  the  part  of  the  lessor  to  insure  against  fire,  or  any  engagement 
to  repair  the  premises  in  that  event,  or  any  other  casualty  by  which 
they  may  be  impaired  or  destroyed,  the  accident  becomes  the  mis- 
fortune of  the  lessee,  and  he  is  not  excused  from  his  rent. 

Judgment  is  not  arrested,  but  must  be  entered  according  to  the 
verdict.1 


BROWN'S  ADMINISTRATORS  v.  BRAGG. 
22  Indiana,  122.  —  1864. 

Worden,  J.  — On  the  1st  of  April,  1859,  Brown  let  to  Bragg  cer- 
tain real  estate,  to  be  held  by  the  latter  for  the  term  of  one  year 
from  that  date;  for  which  Bragg  was  to  pay,  as  rent,  the  sum  of 
$450,  to  be  paid  quarterly,  at  times  specified  in  the  instrument  of 
writing  creating  the  tenancy  executed  between  the  parties.  On  the 
1st  of  December,  1859,  a  quarter's  rent  being  due  and  unpaid,  Brown 
served  on  Bragg  a  notice  to  quit  the  premises  at  the  expiration  of 
ten  days,  unless  the  rent  in  arrear  should  be  paid  within  that  time. 

Bragg  failing  to  pay  the  rent  or  quit  the  premises,  this  action  was 
brought  by  the  representatives  of  the  lessor  to  recover  possession. 
The  suit  was  brought  before  the  expiration  of  the  term. 

1  See  Graves  v.  Berdan,  infra.  —  Ed. 


II.   I.]  ESTATES   FOR   YEARS   OR   "  TERMS."  "J2J 

The  court  below  held  on  the  facts  above  stated,  that  the  plaintiffs 
were  not  entitled  to  recover,  and  we  think  the  decision  was  in 
accordance  with  the  law  of  the  case. 

We  suppose  that,  independently  of  any  statutory  provisions,  the 
proposition  that  the  failure  to  pay  the  rent  due,  did  not  work  a  for- 
feiture of  the  estate  of  the  tenant,  is  too  clear  to  require  the  citation 
of  any  authorties  in  its  support.  In  order  that  a  failure  to  pay  rent 
should  work  a  forfeiture,  it  should  be  so  expressed  in  the  lease  or 
agreement  of  the  parties,  which  was  not  done  in  the  case  before  us. 
As  well  might  a  man  who  sells  a  horse  to  be  paid  for  in  the  future, 
claim  to  recover  him  back  on  failure  of  the  purchaser  to  pay  accord- 
ing to  his  stipulation,  as  the  lessor  of  real  estate  to  recover  it  from 
his  tenant  because  of  his  failure  to  pay  rent,  there  being  no  stipula- 
tion that  such  failure  should  work  a  forfeiture. 

But  we  have  the  following  statutory  provision,  which  is  claimed  by 
the  appellants  to  be  applicable  to  the  case  before  us.  "  If  a  tenant 
at  will,  or  from  year  to  year,  or  for  a  shorter  period,  neglect  or 
refuse  to  pay  rent  when  due,  ten  days'  notice  to  quit  shall  determine 
the  lease,  unless  such  rent  shall  be  paid  at  the  expiration  of  said  ten 
days."     2  G.  &  H.  P.  359,  §  4. 

The  case  before  us  does  not  come  within  any  of  the  clauses  of  the 
•statute  above  set  out.     *     *     * 

The  lease  in  the  case  before  us,  created  an  estate  which  the  law 
defines  to  be  an  estate  for  years.  Such  would  also  have  been  its 
character  had  it  been  less  than  a  year  in  duration.  "  Every  estate 
which  must  expire  at  a  period  certain  and  prefixed,  by  whatever 
words  created,  is  an  estate  for  years."  2  Shars.  Blackstone,  p.  142. 
"  Estates  for  years  embrace  such  as  are  for  a  single  year,  or  for  a 
period  still  less,  if  definite  and  ascertained,  as  a  term  for  a  fixed 
number  of  weeks  or  months,  as  well  as  for  any  definite  number  of 
years,  however  great."     7  Washburn  on  Real  Estate,  p.  291. 

The  defendant  being  a  tenant  for  years,  and  not  at  will,  or  from 
year  to  year,  or  for  a  shorter  period,  it  was  not  competent  for  the 
lessor  to  terminate  the  tenancy  before  the  expiration  of  the  term, 
on  the  ground  of  failure  to  pay  the  stipulated  rent. 

Judgment  below  affirmed. 


728      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 
b.    The  term  may  be  created  to  commence  in  futuro.1 

YOUNG  v.  DAKE. 

5  New  York,  463.  —  1851. 

Summary  proceedings  brought  by  landlord  to  remove  a  tenant 
who  is  alleged  to  be  holding  over  his  term.  In  Sept.,  1848,  while 
the  defendant  was  in  possession  of  the  premises  under  a  lease  which 
would  expire  April  1,  1849,  a^parol  agreement  was  entered  into 
between  the  parties  that  Dake  should  occupy  the  store  for  another 
year,  commencing  April  1st,  1849,  on  the  same  terms  as  for  the  then 
current  year.  This  proceeding  was  commenced  April  3,  1849. 
Judgment  for  defendant  below.  The  judgment  was  sustained  on 
certiorari  to  the  Supreme  Court.     Plaintiff  appeals. 

McCoun,  J.  —  The  importance  of  this  case  is  owing  chiefly  to  the 
fact  that  the  judgment  of  the  Supreme  Court  in  the  fourth  district,  on 
the  opinion  of  Mr.  J.  Paige,  which  is  appealed  from,  and  a  judgment 
in  the  fifth  district  in  Croszvell  v.  Crane,  7  Barb.  192,  on  the  opinion 
of  Allen,  J.,  upon  precisely  the  same  question,  are  directly  in  conflict 
with  each  other.  That  question  is  simply  this,  whether  a  parol 
agreement  to  let,  or  demise,  a  house  or  other  real  estate,  for  the 
term  of  one  year,  to  commence  in  futuro,  is  valid  in  law? 

There  are  two  sections  of  our  present  statute  concerning  "  fraudu- 
lent conveyances  and  contracts  relative  to  lands,"  which  bear  upon 
the  question,  and  by  which  it  must  be  determined.  These  are  sec- 
tions 6  and  8,  2  R.  S.  134. 3  The  first  of  these  sections  relates  to  the 
manner  of  creating  an  estate  or  interest  in  land,  and  of  assigning  it, 
etc.  The  other  prescribes  the  requisites  of  a  valid  contract  for  the 
sale  of  lands;  and  both,  by  way  of  exception,  leave  "  leases  for  a 
period  not  exceeding  one  year,"  and  "contracts  for  the  leasing  for 
a  period  not  longer  than  '  one  year,'  "  unaffected  by  the  formalities 
and  requisites  therein  prescribed. 

It  follows,  therefore,  that  a  lease  "  for  a  term  not  exceeding  'one 
year,'  "  and  a  contract  for  "  a  lease  or  letting  for  a  period  '  not  longer 
than  one  year  '  "  are  valid,  though  made  by  parol;  but  the  question 
is  whether  the  lease  or  contract,  in  order  to  be  thus  valid,  must  be 
confined  to  one  year  from  the  time  of  granting,  or  entering  into  it. 
The  statute  does  not  say  so.  There  is  no  word  or  expression  which 
would  seem  to  attach  any  such  qualification  or  condition  to  a  parol 

1  For  the  nature  of  the  lessee's  interest  in  such  case  before  the   term  actually 
begins,  see  Becar  t.  flues,  supra,  p.  722.  —  En. 
207  and  224  N.  Y.  R.  P.  L.  —  Ed. 


II.   i.]  ESTATES    FOR    YEARS    OR   "  TERMS."  729 

lease,  or  contract  of  letting  for  a  year,  as  that  it  shall  commence 
immediately,  and  cannot  be  made  to  commence  at  some  future  day. 
The  appellant  nevertheless  insists,  and  the  reasoning  of  the  court  in 
Croswellv.  Crane  is  to  the  same  effect,  that  the  words  "  from  the 
making  thereof  "  are  to  be  supplied,  so  that  these  sections  of  the 
Revised  Statutes  must  be  understood  as  having  the  same  qualification 
in  that  respect  which  existed  in  the  old  statute,  allowing  parol  leases 
and  parol  contracts  for  leases  not  exceeding  three  years. 

It  appears  that  the  revisors  did  not  purpose  to  make  any  alteration 
of  the  old  law  in  respect  to  leases,  and  contracts  for  leases  by  parol, 
but  prepared  the  sections  limiting  their  term  or  duration  to  three 
years  "  from  the  making  thereof,"  as  in  the  then  existing  statute; 
and  in  that  form  and  with  a  view  to  a  re-enactment,  submitted  the 
sections  6  and  8  to  the  Legislature.  The  appellant's  counsel  supposes 
that  Mr.  Justice  Paige  was  mistaken  in  saying  that  the  Legislature 
struck  out  the  words  "  from  the  making  thereof,"  whereas  those 
words  were  dropped  or  stricken  out  by  the  revisors.  The  counsel 
has  been  misled  on  this  subject.  The  revisors'  original  reports,  as 
printed  for  the  use  of  the  Legislature,  show  that  they  prepared  the 
6th  section  for  adoption,  allowing  of  parol  leases  for  three  years, 
with  the  explanatory  words,  "  from  the  making  thereof."  What- 
ever alteration  it  underwent,  therefore,  was  an  alteration  by  way  of 
amendment  in  the  Legislature.  The  term  of  three  years,  as  pro- 
posed, was  reduced  in  the  enactment  to  one  year,  and  the  words 
"  from  the  making  thereof  "  were  entirely  omitted. 

Now,  who  can  say,  or  can  have  a  right  to  say,  that  when  those 
alterations  and  amendments  were  made  in  the  law,  the  Legislature 
did  not  intend  to  dispense  entirely  with  the  qualification  which  the 
latter  words  would  seem  to  import? 

It  appears  to  me  a  much  more  rational  supposition,  that  the  Legis- 
lature did  so  intend,  than  that  they  did  not,  for  if  the  object  had 
been  merely  to  substitute  one  year  for  three  years,  and  to  make  no 
other  alteration  in  the  principle  of  the  law,  they  would  have  per- 
mitted the  other  words  to  remain.  Those  words  were  there  already, 
and  they  were  just  as  appropriate  to  the  term  of  one  year  as  to  three 
years.  They  were  not  the  less  required  to  explain  and  limit  the 
commencement  of  the  term  and  duration  of  the  lease  in  the  one  case, 
than  in  the  other,  provided  it  was  the  intention  that  contracting 
parties  should  still  regard  it  as  the  law,  that  their  verbal  contracts 
and  leases  for  a  year  must  not  be  made  to  commence  on  a  future  or 
subsequent  day.  Omitting  to  re-enact  those  words  when  the  term  of 
a  verbal  lease  was  reduced  to  one  year,  shows,  I  think,  very  conclu- 
sively, a  design  to  take  off  the  restrictions  they  were  calculated  to 


•    73°      ESTATES   AS   TO    QUANTITY    AND    QUALITY.     [PT.  IV.  Cll.  II. 

impose,  as  not  being  necessary  when  the  letting  should  be  but  for  a 
single  year. 

The  section  of  the  statute  now  under  consideration  appears  to  me 
not  to  come  within  the  rule  of  construction  adverted  to  in  Croswell 
v.  Crane,  that  a  mere  change  of  phraseology  in  the  revision  of 
statutes  does  not  work  a  change  in  the  law,  because  I  think  the 
intention  of  the  Legislature  in  this  instance  to  change  the  law,  is  too 
apparent  to  admit  of  any  doubt,  from  the  circumstances  I  have  men- 
tioned.    2  Hill,  380;  6  Hill,  574. 

The  statute  then  threw  no  obstacle  in  the  way  of  a  parol  lease,  or 
of  an  agreement  for  a  letting  for  a  year,  to  commence  in  futuro;  and 
there  is  nothing  in  the  common  law  to  prevent  it.  From  the  mak- 
ing of  a  contract  or  lease  to  take  effect  afterwards,  a  present  interest 
vests  —  an  interesse  termini — though  not  an  interest  in  possession, 
until  the  lessee  enters  upon  the  possession.  2  Preston's  Shep. 
Touch.  267,  241;   1  Comstock's  R.  311. 

The  time  between  the  making  of  the  lease  and  its  commencement 
in  possession,  is  no  part  of  the  term  granted  by  it.  The  term  is 
that  period  which  is  granted  for  the  lessee  or  tenant  to  occupy  and 
have  possession  of  the  premises.  It  is  the  estate  or  interest  which 
he  has  in  the  land  itself  by  virtue  of  the  lease  from  the  time  it  vests 
in  possession.  When,  therefore,  our  statute  speaks  of  a  lease  for  a 
term  not  exceeding  one  year,  and  of  a  contract  for  a  lease  for  a 
period  not  longer  than  one  year,  it  has  reference  to  the  time  for  the 
tenant  to  possess  and  occupy  the  premises,  and  does  not  include  any 
previous  or  intermediate  time.  A  lease,  therefore,  for  the  term  of 
one  year,  may  as  well  be  made  to  commence  at  a  future  day,  as  at. 
the  day  of  making  it.  If  it  should  not  expire  until  two  years  from 
the  time  it  was  made,  it  might  still  be  a  lease  only  for  one  year. 

Another  point  has  been  presented  by  the  appellant,  viz.,  that  there 
was  an  agreement,  not  in  writing,  which,  by  its  terms,  was  not  to 
be  performed  within  a  year  from  the  making  thereof,  and  therefore 
it  was  void.      2  R.  S.  135,  §   2,  sub.  i.1 

The  agreement  in  question  took  place  on  the  nth  Sept.,  1848,  by 
which  the  defendant  was  to  hold  and  occupy  the  premises  for  a  year, 
to  commence  on  the  1st  April,  1849. 

In  Croswell  v.  Crane,  the  court  appears  to  have  considered  that 
the  above  provision  of  the  statute  also  applied  to  such  cases,  and 
was  fatal  to  this  agreement. 

That  provision  of  the  statute  is  a  part  of  the  title  II  of  the  statute 

1  These  provisions  are  now  in  §  21  of  the  New  York  Personal  Property  Law, 
Laws  of  1897,  ch.  417.  —  Ed. 


II.   I.]  ESTATES    FOR   YEARS   OR   "TERMS."  73 1 

to  prevent  frauds  in  conveyances  and  contracts;  and  the  whole  of 
that  title  and  all  its  provisions  has  reference  only  to  "  fraudulent 
conveyances,  and  contracts  relative  to  '  goods,  chattels,  and  things  in 
action.'  "  It  is  very  obvious  that  none  of  its  provisions  have  any 
application  to,  or  effect  upon,  contracts  or  agreements  concerning 
lands,  or  interest  in  lands.  The  first  title  of  the  statute  performs 
that  office.  The  second  title  applies  to  contracts  and  transactions 
affecting  personal  property  only.  The  learned  court  of  the  fifth 
district  must  have  overlooked  this  fact,  when  that  part  of  the  opinion 
was  adopted,  which  supposes  that  the  agreement  or  lease  in  question 
came  within  its  provisions. 

Judgment  affirmed. 


c.    The  term  may  be  subject  to  a  condition  subsequent  or  to  a  limitation 

express  or  implied.1 

JACKSON  ex  dem.  WELDON  v.  HARRISON. 

17  Johnson  (N.  Y.),  66.  —  1819. 

Ejectment  to  recover  leased  premises  on  the  ground  that  the 
lessee  has  broken  certain  conditions  contained  in  the  lease.  Verdict 
for  plaintiff,  subject  to  the  opinion  of  this  court. 

Van  Ness,  J.,  delivered  the  opinion  of  the  court.  — The  stipula- 
tion in  the  concluding  part  of  the  lease,  prohibiting  the  lessee  from 
making  alterations  in  the  buildings,  rests  in  covenant  merely,  and 
is  not  made  a  condition  for  the  breach  of  which  the  estate  is  for- 
feited. Nor  can  the  lessor  of  the  plaintiff  avoid  the  lease,  because 
one  of  the  buildings  was  underlet. 

The  condition  in  the  lease  is,  that  the  lessor  shall  not  "  assign 
over,  or  otherwise  part  with,  this  indenture,  or  the  premises  thereby 
leased,  or  any  part  thereof,  to  any  person,"  etc.  These  words  must 
be  construed  to  mean  an  assignment  of  the  premises,  or  part  of  them, 
for  the  whole  term;  and  no  forfeiture  is  incurred  by  letting  for  a 
shorter  period;  under-leases  not  being  considered  as  coming  within 
the  terms  of  the  condition,  or  proviso.  This  principle  was  fully 
settled,  in  the  case  of  Crusoe  ex.  dem.  Blencowe  v.  Bugby,  3  Wils.  234, 
and  has  been  repeatedly  sanctioned  since  and  applied  to  conditions 
expressed  in  stronger  terms  than  in  the  present  case.     A  lease  may 

1  A  lease  made  by  a  life  tenant  is  subject  to  such  implied  limitation.  In 
some  states  the  devisee  of  a  life  interest  may  (by  the  will)  be  given  power  to 
make  leases  which  shall  extend  beyond  his  own  life.  See  N.  Y.  R.  P.  L., 
§§  123,  135.  — Ed. 


732      ESTATES   AS   TO    QUANTITY    AND    QUALITY.     [PT.  IV.  CH.  II. 

be  so  expressed  as  to  produce  a  forfeiture  for  underletting,  as  well 
as  for  assinging  the  whole  term;  but  this  is  not  the  language  of  the 
lease  in  question. 

The  plaintiff  equally  fails  in  showing  a  right  of  re-entry,  by  reason 
that  the  defendant  did  not  pay  the  United  States,  tax,  because,  the 
indispensably  necessary  step  of  making  a  demand  of  the  defendant, 
within  the  period  required  by  law,  in  order  to  create  a  forfeiture, 
was  not  taken. 

It  remains  to  be  considered,  whether  the  plaintiff  is  entitled  to 
recover,  on  the  ground  that  a  forfeiture  has  been  incurred  by  the 
nonpayment  of  the  rent.  This  is  a  proceeding  at  common  law,  and 
the  claim  of  the  plaintiff  being  strict!  juris,  all  the  niceties  required 
by  the  common  law  must  be  previously  complied  with,  to  entitle 
the  revisioner  to  re-enter.  There  must  be  a  demand  of  the  rent  due 
on  the  last  day,  a  convenient  time  before  sunset;  and,  if  there  be  a 
house  on  the  land,  the  demand  must  be  made  at  the  house  of  the 
tenant,  if  he  is  at  home.  Several  other  things  are  required  to  be 
done,  which  it  is  not  necessary  to  detail  for  the  purpose  of  deciding 
this  case.1  Co.  Litt.  201  b,  202  a;  1  Saund.  287  n  16  and  the 
cases  there  cited.  On  the  1st  and  20th  of  November,  1817,  Reid, 
the  agent  of  the  lessor  of  the  plaintiff,  went  to  the  house  of  the 
defendant,  the  lessee,  in  the  afternoon,  and  demanded  payment  of 
the  quarter's  rent  then  due;  but  the  defendant  answered,  "  he  could 
not  pay."  A  similar  demand  was  made  by  the  agent,  on  the  1st  and 
20th  of  February,  in  the  same  year,  of  the  quarter's  rent  then  due, 
and  the  defendant  promised  to  pay  it,  but  did  not.  The  question 
is,  whether  or  not,  under  these  circumstances,  the  right  to  re-enter 
accrued.3  I  think  it  did  not.  The  agent  says  he  made  the  demand 
"  in  the  afternoon;  "  now,  this  may  have  been  immediately  after  12 
o'clock,  and  a  demand  at  so  early  an  hour  would  not  be  good.  '  The 
last  time  of  demand  of  the  rent,"  says  Lord  Coke,  "  is  such  a  con- 
venient time  before  the  sun-setting  of  the  last  day  of  payment,  as  the 
money  may  be  numbered  and  received."  And  it  is  laid  down  by 
Hale,  Ch.  B.,  that  the  time  of  sunset  is  the  time  appointed  by  law 
to  demand  rents;  Duppa  v.  Mayo,  1  Saund.  287,  and  though  this  is 
probably  not  literally  correct,  yet  it  serves  to  show  that  the  demand 
necessary  to  be  made,  to  create  a  forfeiture,  must  be  immediately 
preceding  sunset,  so  that  the  money  may  be  counted,  and  the  neces- 
sary receipt  or  acquittance  given,  while  there  is  light  enough  reason- 
ably to  do  so.  This  may  appear  to  be  unnecessarily  rigorous,  and 
a  sacrifice  of  substance  to  form;  but  when  it  is  considered  that  the 

1  See  Smith  v.   Whitbeck,  13  Oh.  St.  471.  —  Ed. 

•  A  riK'lu  of  re-entry  for  non-payment  of  rent  was  reserved  in  the  lease.  —  En. 


II.   i.]  ESTATES   FOR   YEARS    OR   "TERMS."  J ^ 

consequence  of  a  proceeding  of  this  kind,  is  the  forfeiture  of  the 
tenant's  whole  interest  under  the  lease,  every  necessary  form  which 
the  law  has  prescribed  must  be  most  scrupulously  observed.  '  The 
court  have  always  looked  nearly  into  these  conditions,  covenants,  or 
provisos."  Crusoe  v.  Bugby,  3  Wils.  234.  It  was  incumbent  on 
the  plaintiff  to  have  shown  during  what  part  of  the  afternoon  the 
demand  was  made,  and  that  it  was  towards  sunset,  or  late  in  the 
afternoon.  The  defendant,  in  a  case  of  this  description,  had  a  right 
to  remain  passive,  and  to  avail  himself  of  any  defect  of  proof  on  the 
other  side,  necessary  to  establish  his  right  to  recover.  This  point 
being  decisive,  the  other  objections  to  the  plaintiff's  right  to  recover 
need  not  be  noticed.     The  defendant  is  entitled  to  judgment. 

Judgment  for  the  defendant. 


d.    The  term   may  end  {before  the  time  fixed}  by  forfeiture,  surrender, 
merger,  or  the  exercise  of  the  power  of  eminent  domain. 

JACKSON  ex  dem.  WELDON  v.  HARRISON. 

17  Johnson  (N.  Y.),  66.  —  1819. 
[Reported  herein  at  p.  731.] 


LOUGHRAN  v.  ROSS. 
15  New  York,  792.  —  1871. 
[Reported  herein  at  p.  325. ]' 


e.  Effect  of  destruction  of  the  premises  in  whole  or  part. 

GRAVES  v.  BERDAN. 

26  New  York,  498.  —  1863. 

Rosekrans,  J.  — The  opinion  delivered  by  Justice  Emott  in  this 
case,  in  the  Supreme  Court,  is  a  correct  exposition  of  the  law  appli- 
cable to  it,  and  for  the  reasons  stated  therein,  the  judgment  should 
be  affirmed.  The  case  of  Stockwell  v.  Hunter,  11  Mete.  448,  may  be 
added  to  the  authorities  cited  by  Justice  Emott  to  show  that  a  lease 
of  basement  rooms  or  chambers,  in  a  building  of  several  stories  in 

1  For  a  case  of  merger  of  a  term  in  the  fee,  see  Carroll  v.  Ballance,  26  111.  9, 
and  compare  .  —  Ed. 


734      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

height,  without  any  stipulation,  by  the  lessor  or  lessee,  for  rebuild- 
ing, in  case  of  fire  or  other  casualties,  gives  the  lessee  no  interest  in 
the  land  upon  which  the  building  stands,  and  that  if  the  whole  build- 
ing is  destroyed  by  fire,  the  lessee's  interest  in  the  demised  rooms  is 
terminated,  and  the  lessor  may,  after  the  destruction  of  the  building, 
enter  upon  the  soil  and  rebuild  upon  the  ruins  of  the  former  edifice. 

It  may  be  added  that  at  common  law,  where  the  interest  of  the 
lessee  in  a  part  of  the  demised  premises  was  destroyed  by  the  act  of 
God,  so  that  it  was  incapable  of  any  beneficial  enjoyment,  the  rent 
might  be  apportioned.  In  Rolle's  Abridgement,  236,  it  is  said  that 
if  the  sea  break  in  and  overflow  a  part  of  the  demised  premises,  the 
rent  shall  be  apportioned  for,  though  the  soil  remains  to  the  tenant, 
yet  as  the  sea  is  open  to  every  one,  he  has  no  exclusive  right  to  fish 
there.  A  distinction  is  taken  between  an  overflow  of  the  land  by  the 
sea,  and  fresh  water,  because,  though  the  land  be  covered  with  fresh 
water,  the  right  of  taking  the  fish  is  vested  exclusively  in  the  lessee, 
and  in  that  case  the  rent  will  not  be  apportioned.  In  the  latter  case 
the  tenant  has  a  beneficial  enjoyment,  to  some  extent,  of  the  demised 
premises,  but  in  the  former  he  has  none,  and  if  the  use  be  entirely 
destroyed  and  lost,  it  is  reasonable  that  the  rent  should  be  abated, 
because  the  title  to  the  rent  is  founded  on  the  presumption  that  the 
tenant  can  enjoy  the  demised  premises  during  the  term.  Com. 
Land,  and  Ten.  218;  Gilb.  on  Rents,  182. 

Where  the  lessee  takes  an  interest  in  the  soil  upon  which  a  build- 
ing stands,  if  the  building  is  destroyed  by  fire,  he  may  use  the  land 
upon  which  it  stood,  beneficially,  to  some  extent,  without  the  build- 
ing, or  he  may  rebuild  the  edifice;  but  where  he  takes  no  interest  in 
the  soil,  as  in  the  case  of  a  demise  of  a  basement,  or  of  upper  rooms 
in  the  building,  he  cannot  enjoy  the  premises  in  any  manner  after 
the  destruction  of  the  building,  nor  can  he  rebuild  the  edifice.  He 
cannot  have  the  exclusive  enjoyment  of  the  vacant  space  formerly 
occupied  by  the  demised  rooms.  The  effect  of  the  destruction  of 
the  building,  in  such  a  case,  is  analogous  to  the  effect  of  the  destruc- 
tion of  demised  premises  by  the  encroachments  of  the  sea,  mentioned 
in  Rolle's  Abridgment;  and  the  established  rule  for  the  abatement 
or  apportionment  of  the  rent,  should  be  applied  in  the  former  as 
well  as  in  the  latter  case.  The  same  reason  exists  for  its  application 
in  both  cases. 

But  even  if  the  lessee's  interest  in  the  demised  apartment,  in  a 
case  like  this,  was  not  terminated  by  the  total  destruction  of  the 
building,  it  may  be  doubted  whether  the  lessee  could  recover  rent  so 
long  as  he  failed  to  give  to  the  demised  upper  rooms  the  support 
necessary   to  them   for  special   enjoyment.     The   rule  seems  to  be 


II.   i.]  ESTATES   FOR   YEARS   OR   "  TERMS."  735 

settled  in  England,  that  where  a  house  is  divided  into  different 
floors  or  stories,  each  occupied  by  different  owners,  the  proprietor 
of  the  ground  floor  is  bound,  by  the  nature  and  condition  of  his 
property,  without  any  servitude,  not  only  to  bear  the  weight  of  the 
upper  story,  but  to  repair  his  own  property  so  that  it  may  be  able  to 
bear  such  weight.  The  proprietor  of  the  ground  story  is  obliged  to 
uphold  it  for  the  support  of  the  upper  story.  Humphrey  v.  Brogden, 
12  Q.  B.  739;  s.  c.  1  Eng.  Law  and  Eq.  241;  Rowbothem  v.  Wilson, 
$6  Id.  236;  Harris  v.  Roberts,  6  El.  &  Br.  643;  s.  c.  7  Id.  625.  In 
the  case  last  cited  the  duty  of  such  support  is  recognized  as  a  gen- 
eral common  law  right.  In  a  lease  of  upper  rooms  by  the  owner  of 
the  entire  building,  a  covenant  should  be  implied  on  the  part  of  the 
lessor  to  give  such  support  to  the  upper  rooms  as  is  necessary  for 
their  beneficial  enjoyment.  It  has  been  decided  in  this  court  that 
the  statute  forbidding  the  implication  of  covenants  in  conveyances 
of  real  estate,  does  not  apply  to  leases  for  years.  Mayor  of  New 
York  v.  Maybee,  3  Kern.  151;  Vernam  v.  Smith,  15  N.  Y.  332,  333. 

The  judgment  should  be  affirmed.1 


FOWLER  v.  BOTT. 

6  Massachusetts,  63.  —  1809. 
{Reported  herein  at  p.  725.] 

f.  Holding  over  the  term. 

(1.)  When  Tenant  Will  be  Held  for  Another  Year. 

HAYNES  v.  ALDRICH. 

133  New  York,  287.  —  1892. 

Finch,  J. — Judgment  was  ordered  against  the  defendant  upon 
the  trial  of  this  action  for  rent  accrued  after  the  expiration  of  her 
original  lease,  upon  the  ground  that  by  holding  over  after  such 
expiration,  she  became  a  tenant  for  another  year  upon  the  terms  of 
the  prior  written  lease.  The  facts  disclosed  were  that  such  lease 
ended  by  its  terms  on  May  1,  1889;  that  it  contained  a  provision 
that  the  premises  should  be  occupied  as  a  private  dwelling,  and  a 
covenant  not  to  sublet  without  the  written  consent  of  the  lessor.    Both 

1  But  see  the  dissenting  opinion  by  Wright,  J.,  and  the  case  of  Helbum  &•» 
Co.  v.  Mofford,  7  Bush.  (Ky.)  169.     See  also  §  197,  N.  Y.  R.  P.  L.  —  Ed. 


736      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.   CH.  II. 

stipulations  were  violated.  The  tenant,  without  permission,  rented 
the  premises  to  Mrs.  Coventry,  who  occupied  them  as  a  boarding 
house,  and  received,  as  one  of  her  boarders,  a  lady  who  was  a  chronic 
invalid  and  continuously  ill.  On  the  4th  of  February,  1889,  the 
lessor  inquired  of  the  lessee  whether  she  desired  to  renew  her  lease 
for  another  year,  and  was  informed  that  she  did  not.  The  first  day 
of  May  was  a  holiday,  and  possibly  the  tenant  had  until  noon  of  the 
next  day  for  a  surrender  of  possession.  But  the  possession  was 
retained  by  the  tenant  until  the  afternoon  of  May  4th,  when  the  keys 
were  tendered,  but  refused.  The  excuse  given  is  that  on  the  second 
day  of  May,  there  was  difficulty  in  engaging  trucks;  that  the  removal 
began  on  the  third,  but  the  sick  boarder  could  not  then  be  moved 
with  safety,  and  was  not  moved  until  the  fourth. 

This  court  held  in  Commissioners  of  Pilots  v.  Clark,  33  N.  Y.  251, 
that  the  rule  is  too  well  settled  to  be  disputed  that  where  a  tenant 
holds  over  after  the  expiration  of  his  term  the  law  will  imply  an 
agreement  to  hold  for  a  year  upon  the  terms  of  the  prior  lease;  that 
the  option  to  so  regard  it  is  with  the  landlord  and  not  with  the  ten- 
ant, and  that  the  latter  holds  over  his  term  at  his  peril.  In-  Conway 
v.  Starkweather,  1  Den.  114,  the  tenant  had  notified  the  landlord  of 
his  intention  not  to  remain  for  another  year,  as  was  the  fact  in  the 
present  case,  but,  nevertheless,  did  hold  over  for  a  fortnight,  and 
the  fact  of  the  notice  was  held  to  be  immaterial,  the  court  saying, 
"  the  act  of  the  plaintiff  in  holding  over  has  given  the  defendants  a 
legal  right  to  treat  him  as  tenant,  and  it  is  not  in  his  power  to  throw 
off  that  character,  however  onerous  it  may  be." 

The  appellant  does  not  deny  the  rule,  but  seeks  to  qualify  it  so  as 
to  mean  that  it  is  only  where  the  tenant  holds  over  voluntarily  and 
for  his  own  convenience  that  the  landlord's  right  arises,  and  that  it 
does  not  so  arise  when  the  tenant  holds  over  involuntarily,  not  for 
his  own  convenience,  but  because  he  cannot  help  it.  I  am  averse 
to  any  such  qualification.  It  would  introduce  an  uncertainty  into  a 
rule  whose  chief  value  lies  in  its  certainty.  The  consequent  con- 
fusion would  be  very  great.  Excuses  would  always  be  forthcoming, 
and  their  sufficiency  be  subject  to  the  doubtful  conclusions  of  a  jury, 
and  no  lessor  would  ever  know  when  he  could  safely  promise  posses- 
sion to  a  new  tenant.  The  cases  cited  by  the  appellant  do  not  bear 
out  his  contention.  In  Smith  v.  AM,  7  Daly,  492,  the  holding  over 
was  in  part  the  act  and  assent  of  the  landlord  and  occasioned  by 
pending  negotiations,  and  could  not  have  been  said  to  be  the  sole 
act  of  the  tenant.  In  Shanahan  v.  Shanahan,  53  J.  &  S.  344,  it 
appeared  that  the  first  of  May  was  Sunday,  that  the  tenant  began  to 
move  on   the  afternoon  of  the   second,  that  the  removal  continued 


II.   i.]  ESTATES   FOR   YEARS    OR   "  TERMS."  737 

during  the  third,  and  for  that  reason  the  tenant  was  held  liable.  The 
courts  did  interject  the  remark  that  there  was  no  unavoidable  delay 
in  moving,  but  without  seeking  to  change  or  modify  the  rule.  In 
McCabe  v.  Evers,  decided  in  1890  in  the  New  York  City  Court,  it 
appeared  that  the  tenant  moved  out  on  the  first  of  May,  but  left 
behind  him  an  old  stove  and  some  rubbish,  and  tendered  the  key  on 
the  second  of  May.  The  court  held  that  the  evidence  of  a  holding 
over  was  inconclusive  and  ambiguous,  and  the  question  should  have 
been  submitted  to  the  jury.  In  Maney  v.  Clemens,  decided  by  the 
same  court,  the  term  expired  on  February  second,  at  noon;  the 
tenant  began  his  removal  in  the  morning  and  worked  till  midnight. 
There  was  a  verdict  against  the  landlord  which  the  court  refused  to 
set  aside. 

These  cases,  even  if  regarded  in  all  respects  as  correctly  decided, 
fall  very  far  short  of  establishing  the  appellant's  doctrine  or  justify- 
ing a  reversal  in  the  present  case.  There  is  no  question  here  about 
the  fact  of  a  holding  over,  and  no  question,  therefore,  in  that  regard 
for  the  solution  of  a  jury.  The  tenant  remained  in  possession 
voluntarily,  for  her  own  convenience  and  that  of  her  sick  boarder. 
If  it  was  unsafe  to  remove  the  latter,  the  situation  was  wholly  the 
fault  of  the  tenant,  who  sets  up  as  an  excuse  for  one  violation  of  the 
lessor's  rights  the  consequences  of  her  own  earlier  violation  of 
the  terms  of  the  lease.  No  impossibility  of  removal  was  shown 
merely  difficulty  and  inconvenience,  which  should  have  been  and 
might  have  been  foreseen  and  provided  against.  If  the  rule  in  this 
case  seems  to  involve  a  hardship,  that  is  sometimes  true  of  every 
general  rule,  however  just  and  wise,  but  does  not  justify  its  abroga- 
tion. To  sustain  this  defense  would  open  the  door  to  a  destruction 
of  the  settled  doctrine  and  tend  to  involve  the  rights  of  both  lessor 
and  lessee  in  uncertainty  and  confusion. 

I  do  not  mean  to  say  that  whether  there  has  been  a  holding  over 
at  all  may  not  sometimes  be  so  doubtful  upon  the  facts  as  to  require 
a  submission  to  the  jury.  I  mean  to  say  that  there  is  no  such  doubt 
in  the  present  case.  I  reserve  the  question  also,  whether  there 
might  not  be  an  unavoidable  delay,  in  no  manner  the  fault  of  the 
tenant,  directly  or  indirectly,  which  would  serve  as  a  valid  excuse. 
It  is  enough  that  here  was  a  holding  over  not  unavoidable,  which 
might  have  been  provided  against,  and  where  the  chief  difficulty 
grew  directly  out  of  the  tenant's  own  wrongful  act. 

It  is  claimed,  however,  that  the  further  question  whether  the  lessor 
exercised  the  permitted  option  or  took  possession  in  her  own  right, 
should  have,  been  submitted  to  the  jury.  I  think  the  facts  admit  of 
but  one  inference.     The  lessor  did  exercise  her  option,   and  that 

LAW  OF  PROP.   IN  LAND  —  47 


738      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

promptly  and  clearly.  When  the  keys  were  tendered  to  her  mother 
they  were  refused.  In  the  afternoon  of  May  fourth  the  lessor  went 
to  the  house  to  see  what  was  occurring.  She  found  it  deserted  and 
the  windows  open.  Her  property  needed  protection.  Under  the 
lease  she  had  a  right  to  enter  and  relet  it  as  the  agent  of  the  tenant. 
A  policeman  entered  through  the  open  window.  Some  keys  were 
found  on  the  mantel  and  thereafter  used,  but  evidently  not  all,  for 
others  were  restored  much  later.  The  premises  were  somewhat 
damaged  and  the  lessor  had  a  little  painting  and  some  plumbing 
done,  amounting  only  to  ordinary  and  needed  repairs.  She  tried 
to  rent  the  house  but  failed,  and  went  to  Europe  during  the  summer, 
and  occupied  the  house  in  the  fall  under  a  stipulation  which  expressly 
reserved  her  existing  rights.  Upon  these  facts  no  inference  was 
justified,  except  that  drawn  by  the  court.  There  was  a  clear  refusal 
to  accept  the  surrender  offered  and  the  repairs  were  consistent  with 
that  position  and  with  the  right  reserved  in  the  lease. 

We  think  the  judgment  was  correct  and  should  be  affirmed,  with 
costs.1 


(2.)  When  He  May  Claim  to  be  a  Tenant  at  Sufferance. 

SMITH  v.  LITTLEFIELD. 

51  New  York,  539.  —  1873. 

Ejectment.  Defense,  that  defendant  was  in  possession  under  a 
lease.     Judgment  below  for  plaintiff.     Defendant  appeals. 

Earl,  C.  —  The  defendant  hired  the  premises  in  question  for  one 
year,  ending  on  the  eighteenth  day  of  April,  1865.  He  held  over 
until  the  nineteenth  day  of  June,  without  the  consent  of  the  plain- 
tiff, when  this  action  was  commenced.  The  plaintiff  had  served  no 
notice  to  quit,  and  the  sole  question  for  our  consideration  is,  whether 
such  a  notice  was  necessary.  At  common  law,  a  tenant  who  held 
over  after  the  expiration  of  his  term  became  a  tenant  by  sufferance. 
He  had  only  a  naked  possession,  and  no  estate  which  he  could  trans- 
fer or  transmit.  He  stood  in  no  privity  to  his  landlord,  was  not 
liable  to  pay  any  rent  and  was  not  entitled  to  any  notice  to  quit. 
He  held  by  the  laches  of  the  landlord,  who  could  enter  and  put  an 
end  to  the  tenancy  when  he  pleased.  4  Kent's  Com.  118.  This  is 
still  the  law,  except  as  modified  by  the  statute.  At  common  law, 
when  by  the  terms  of  the  lease  the  tenancy  terminated  at  a  day 
certain,  the  landlord  could  always  commence  his  action  of  ejectment 

1  Sec  also  Schuyler  v.  Smith,  51  N.  Y.  309.  —  Ed. 


II.   i.]  ESTATES    FOR   YEARS   OR   "  TERMS."  739 

to  recover  possession  of  his  land,  after  the  expiration  of  the  lease, 
without  any  notice  to  quit;  and  this  he  could  do,  although  the 
tenant  became  a  tenant  by  sufferance  by  holding  over  the  term  with- 
out his  permission.  It  was  only  in  a  tenancy  from  year  to  year,  the 
termination  of  which  was  uncertain,  that  the  tenant  was  entitled  to 
notice  to  quit.  The  object  of  the  notice  was  to  give  him  informa- 
tion when  the  lease  would  terminate.  In  the  former  case  such  notice 
was  contained  in  the  lease  itself,  and  in  such  case  I  cannot  discover 
that  it  was  ever  made  the  subject  of  complaint  that  the  tenant  could 
be  removed  without  notice.  If  within  the  meaning  of  our  statutes 
(1  R.  S.  745,  746)  '  every  tenant  holding  over  his  term  for  the  brief- 
est period  is  to  be  deemed  a  tenant  by  sufferance,  and  thus  entitled 
to  one  month's  notice  to  quit,  then  every  lease  for  one  year  will  be, 
at  the  will  of  the  tenant,  practically  extended  to  a  lease  for  thirteen 
months,  as  no  proceedings  can  be  instituted  for  his  removal  until  the 
expiration  of  the  month's  notice.  It  cannot  be  conceived  that  the 
Legislature,  in  a  case  where  the  parties  have  in  the  lease  fixed  a  day 
certain  for  the  termination  of  the  tenancy,  intended  that  the  tenant 
may,  by  his  own  wrong,  extend  his  holding  for  another  month;  and 
a  construction  leading  to  such  a  result  should  not  be  tolerated  if  it 
can  be  avoided.  The  first  statute  in  this  State,  for  the  summary 
removal  of  a  tenant  holding  over  his  term,  was  passed  April  13, 
1820,  and  in  that  statute  it  was  provided  that  "  if  any  tenant  or  lessee 
at  will  or  at  sufferance  or  for  part  of  a  year,  or  for  one  or  more 
years,  or  from  year  to  year,  hold  over  and  continue  in  possession  of 
the  leased  premises  after  the  expiration  of  his  term  without  the 
permission  of  his  landlord,"  he  may  be  removed  in  the  mode  pre- 
scribed in  the  act,  provided  that,  "  in  case  of  a  tenancy  at  will  or 
sufferance,  the  landlord  or  lessor  shall  give  three  months'  notice  in 
writing  to  the  tenant,"  etc.  Under  this  statute  the  construction 
contended  for  by  the  plaintiff  in  this  case  would  have  prevented  any 
procedure  by  the  landlord,  in  the  case  of  a  lease  for  one  year,  until 
the  expiration  of  fifteen  months.  It  is  quite  clear  that  the  tenancy 
at  sufferance  mentioned  in  this  act  which  required  the  notice  was  not 
one  created  by  simply  holding  over  a  definite  term  for  a  brief  period 
without  the  permission  of  the  landlord.  This  statute  was  substan- 
tially re-enacted  in  the  Revised  Statutes  (2  R.  S.  513),*  and  they 
authorize  the  same  summary  proceeding  where  the  tenant  "  shall 
hold  over  and  continue  in  possession  of  the  demised  premises,  or 
any  part  thereof,  after  the  expiration  of  his  term,  without  the  per- 

>§  198,  N.  Y.  R.  P.  L.  —  Ed. 

8  §§  2231-2265,  N.  Y.  Code  Civ.  Pro.  —  Ed. 


740      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.   CH.  II. 

mission  of  the  landlord."  This  authorizes,  and  has  always  been 
understood  to  authorize,  the  proceeding  without  previous  notice  in 
all  cases  where  the  tenant  holds  over  a  definite  term  without  the 
permission  of  his  landlord,  notwithstanding  §  31,  which  requires  that 
before  the  magistrate  shall  issue  the  summons  in  the  case  of  a 
tenancy  at  will,  or  at  sufferance,  he  shall  be  satisfied  "  that  such 
tenancy  has  been  terminated  by  giving  notice  in  the  manner  pre- 
scribed by  law,"  and  the  notice  required  is  one  month.  1  R.  S. 
745.  Why  terminate  the  tenancy  by  notice  when  its  termination  is 
definitely  fixed  by  the  terms  of  the  lease?  Was  it  the  intention  of 
the  Legislature  that,  in  the  case  of  a  tenancy  for  one  year,  the  ten- 
ant could  wrongfully  hold  over  for  fifteen,  twenty  or  thirty  days 
without  the  permission  of  his  landlord,  and  then,  by  his  own  wrong, 
entitle  himself  to  one  month's  notice  before  he  could  be  removed, 
or  even  proceedings  instituted  to  remove  him? 

The  notice  is  clearly  necessary  only  in  case  there  is  such  a  tenancy 
at  will  or  by  sufferance  as  needs  to  be  terminated.  Such  a  tenancy 
is  not  created  within  the  meaning  of  the  statute  by  the  tenant  simply 
holding  over  his  term  without  the  assent  of  his  landlord.  To  entitle 
the  tenant  who  holds  over  a  definite  term  to  notice,  the  holding  over 
must  be  continued  for  such  a  length  of  time  after  the  expiration  of 
the  term,  and  under  such  circumstances  as  to  authorize  the  implica- 
tion of  assent  on  the  part  of  the  landlord  to  such  continuance.  In 
such  case  the  tenancy  existing  by  the  implied  assent  of  the  landlord 
ought  to  be  terminated  before  the  tenant  can  be  removed,  and  in 
such  case  the  tenant  is  a  tenant  by  sufferance  within  the  meaning  of 
the  statute  and  cannot  be  removed  by  summary  proceedings  or 
action  of  ejectment  without  the  previous  notice  to  quit.  The  con- 
struction I  have  thus  given  to  these  statutes  is  the  one  generally,  if 
not  universally,  prevailing  in  practice,  and  while  I  have  found  no 
controlling  decision  directly  in  point,  it  is  sanctioned  by  the  opinions 
of  learned  judges.  It  is  sustained  by  the  opinion  of  Ch.  J.  Savage 
in  Rowan  v.  Lyttle,  11  Wend.  617,  and  by  the  judges  who  wrote 
opinions  in  the  following  cases:  Allen  v.  /aguish,  21  Wend.  631; 
Gamer  v.  Hannah,  6  Duer,  270;    Livingston  v.  Tanner,  12  Barb.  484. 

I,  therefore,  reach  the  conclusion  that  the  judgment  should  be 
affirmed  with  costs. 


II.  2.]  ESTATES    FOR   YEARS   OR   "  TERMS."  741 

2.   Creation  of  the  Term.1 

a.  By  deed  or  other  writing  or  by  parol."1 

Bradley,  J.,  in  T ALAMO  v.  SPITZMILLER. 

120  New  York,  37.  —  1890. 

The  plaintiff  not  being  a  party  to  the  lease,  assumed  no  legal  obli- 
gation to  pay  rent  for  the  term,  as  a  lease  for  more  than  one  year 
not  in  writing  was  void.  2  R.  S.  135,  §§  6,  8.3  The  agreement 
between  the  parties  and  under  which  the  plaintiff  entered  into  joint 
occupancy  with  the  defendant  being  void,  gave  to  the  plaintiff  no 
right  and  imposed  upon  the  defendant  no  obligation  to  permit  him 
to  go  into  or  remain  in  possession  of  any  portion  of  the  house,  and 
unless  he  became  a  yearly  tenant,  his  liability  was  for  use  and  occu- 
pation for  the  time  only  which  he  occupied.  Thomas  v.  Nelson,  69 
N.  Y.  118. 

The  mere  fact  that  a  person  goes  into  possession  under  a  lease 
void  because  for  a  longer  term  than  one  year,  does  not  create  a 
yearly  tenancy.  If  he  remains  in  possession  with  the  consent  of 
the  landlord  for  more  than  one  year  under  circumstances  permitting 
the  inference  of  his  tenancy  from  year  to  year,  the  latter  could 
treat  him  as  such,  and  the  tenant  could  not  relieve  himself  from  lia- 
bility for  rent  up  to  the  end  of  the  current  year.  And  the  terms  of 
the  lease,  void  as  to  the  duration  of  term,  would  control  in  respect  to 
the  rent.  Coudert  v.  Cohnt  118  N.  Y.  309.  The  parol  agreement  for 
five  years  was  not  effectual  to  create  a  tenancy  for  one  year.  Nor 
did  the  mere  fact  that  the  plaintiff  went  into  possession,  have  that 
effect.  He  remained  in  occupation  a  part  of  one  year  only,  and  the 
creation  of  a  tenancy  for  a  year  was  dependent  upon  something 
further.  While  it  is  not  required  that  a  new  contract  be  made  in 
express  terms,  there  must  be  something  from  which  it  may  be  in- 
ferred, something  which  tends  to  show  that  it  is  within   the  inten- 

1  This  may  be  by  devise  or  by  an  agreement  inter  partes.  Probably  the  only 
case  of  a  term  arising  by  operation  of  law  is  the  widow's  quarantine.  §  184,  N. 
Y.  R.  P.  L.,  and  similar  statutes. — Ed. 

2  Technical  words  to  create  a  lease  are,  demise,  lease,  to  farm  let,  but  "  what- 
ever words  are  sufficient  to  explain  the  intent  of  the  parties  that  the  one  should 
divest  himself  of  the  property  and  the  other  come  into  it  for  a  determinate 
time,  whether  they  run  in  the  form  of  a  license,  covenant  or  agreement,  will, 
in  construction  of  law,  amount  to  a  lease  as  effectually  as  if  the  most  proper 
and  pertinent  words  were  made  use  of  for  that  purpose."  Watson  v.  0- Heme,  6 
Watts  (Pa.),  362,  368.  —  En. 

3  i;  207,  N.  Y.  R.  P.  L.  In  many  of  the  States  a  parol  lease  is  valid  if  not 
made  for  a  longer  term  than  three  years.  —  Ed. 


742      ESTATES   AS   TO   QUANTITY    AND    QUALITY.     [PT.  IV.   CH.  II. 

tion  of  the  parties.  The  payment  and  receipt  of  an  instalment 
or  aliquot  part  of  the  annual  rent,  is  evidence  of  such  understanding, 
and  goes  in  support  of  a  yearly  tenancy,  and  without  explanation  to 
the  contrary,  it  is  controlling  evidence  for  that  purpose.  Cox  v. 
Bent,  5  Bing.  185;  Bishop  v.  Howard,  2  Barn.  &  C.  100;  Braythwayte 
v.  Hitchcock,  10  M.  &  W.  494;  Mann  v.  Lovejoy,  Ryan  &  M.  355; 
Thomas  v.  Packer,  1  Hurl.  &  N.  672;  Doe  v.  Crago,  6  C.  B.  90. 

While  there  may  appear  to  have  been  some  confusion  in  the  cases 
in  this  State  upon  the  subject,  this  doctrine  has  been  more  recently 
recognized  Reeder  v.  Sayer,  70  N.  Y.  184;  Laughran  v.  Smith,  75 
Id.  209. 

In  the  cases  last  cited  the  tenants  had  been  in  possession  more 
than  a  year  when  the  question  arose,  but  having  gone  into  occupancy 
under  an  invalid  lease,  their  yearly  tenancy  was  held  dependent  upon 
a  new  contract,  which  might  be  implied  from  the  payment  and 
acceptance  of  rent,  and  when  once  created  could  be  terminated  by 
neither  party,  without  the  consent  of  the  other,  only  at  the  end  of 
the  year.  The  contention,  therefore,  that  by  force  of  the  original 
agreement  between  the  parties,  aided  by  the  fact  that  the  plaintiff 
went  into  the  possession  with  the  consent  of  the  defendant,  a  tenancy 
from  year  to  year  was  created  is  not  so,  and  this  is  not  alone  suffi- 
cient to  support  an  inference  of  the  new  contract  requisite  to  create 
a  yearly  tenancy.  The  plaintiff  paid  no  rent,  nor  while  he  was  in 
possession  was  any  request  of  or  promise  by  him  made  to  pay  any. 
He  simply  went  in  under  the  original  void  agreement  and  left  within 
the  year.  There  was  no  evidence  to  require  the  conclusion  of  the 
trial  court  that  the  plaintiff  had  assumed  any  relation  to  the  premises, 
which  charged  him  with  liability  other  than  for  use  and  occupation, 
during  the  time  he  remained  in  possession.  The  defendant's  counsel, 
to  support  his  proposition  that  the  entry  by  the  plaintiff  with  the 
consent  of  the  defendant  made  him  a  yearly  tenant,  cites  Craske  v. 
C.  U.  P.  Co.,  17  Hun,  319,  where  it  was  remarked  that  a  parol  lease 
for  a  longer  term  than  one  year  "  operated  so  as  to  create  a  tenancy 
from  year  to  year." 

If  that  was  intended  by  the  learned  justice  as  a  suggestion  that 
such  a  void  lease  operated  as  a  demise  for  one  year,  it  is  not  in  har- 
mony with  the  view  of  the  court  in  Laughran  v.  Smith,  supra.  That 
rem  irk  in  the  Craske  Case  was  not  essential  to  the  determination 
there  made,  as  rent  was  in  fact  paid  for  a  portion  of  the  term,  nor 
<  in  n  be  asssumed  that  it  was  intended  to  have  the  import  sought 
to  be  given  to  it.  It  must  be  assumed,  upon  authority  and  reason, 
that  a  parol  lease  for  more  than  one  year  is  ineffectual  to  vest  any 
term  whatever  in  the  lessee  named,  and  that  when  he  goes  into  pos- 


II.  3-]  ESTATES    FOR   YEARS    OR   "  TERMS."  743 

session  under  it  with  the  consent  of  the  lessor,  without  any  further 
agreement,  he  is  tenant  at  will  merely,  subject  to  liability  to  pay  at 
the  rate  of  the  stipulated  rent  as  for  use  and  occupation.  Barloiv  v. 
Wainwright,  22  Vt.  88.  This  may  be  converted  into  a  yearly  tenancy 
by  a  new  contract,  which  may  be  implied  from  circumstances,  when 
they  permit  it.  While  the  mere  entry  with  consent  will  not  alone 
justify  it,  a  promise  to  pay  and  a  purpose  manifested  to  accept  a 
portion  of  the  annual  rent  provided  for  by  the  agreement  may,  as 
evidence,  go  in  support  of  such  a  new  contract.  There  was  no  such 
evidence  in  this  case.  The  promise  to  the  plaintiff  to  pay  one-half 
the  rent  was  made  preliminarily  to  his  entry,  and  was  part  of  and  not 
distinguishable  from  the  parol  agreement  with  the  defendant  to 
occupy  for  five  years  and  pay  one-half  the  rent  for  that  term.  There 
does  not  seem  to  have  been  any  evidence  to  require  the  conclusion 
that  any  other  than  such  void  agreement  was  made  between  the 
parties,  or  that  the  plaintiff  became  other  than  a  mere  tenant  at  will 
of  the  defendant.  1  Woodfall's  Landl.  &  Ten.  (1st  Am.  ed.  from 
13th  Eng.  ed.)  221. 


3.   Alienation  of  the  Term. 
a.    Assignment  or  subletting. 

COLLINS  v.  HASBROUCK. 

56  New  York,  157.  — 1874. 

Folger,  J.  —  This  is  an  action  of  ejectment,  brought  by  a  land- 
lord against  an  under-tenant.  When  the  action  was  commenced, 
the  term  created  by  the  original  lease,  had  not  expired  by  the  lapse 
of  time.  It  is  claimed,  however,  that  there  had  been  a  forfeiture  of 
the  lease,  by  a  breach  by  the  lessees,  of  their  covenant  not  to  sub- 
let. That  covenant  is,  that  they  will  not  sublet,  without  the  written 
consent  of  the  lessor.  It  is  followed  by  the  condition,  that  in  case 
of  a  violation  or  breach  thereof,  the  lease  shall  terminate,  at  the 
option  of  the  lessor. 

The  first  question  is,  did  the  lessees  sublet  the  premises,  without 
the  written  consent  of  the  lessor.  They  executed  an  instrument  to 
Brower,  by  which  they  gave  him  a  right  in  the  premises,  for  two 
3"ears  and  seven  months,  and  a  privilege  for  four  years  longer  by  his 
giving  two  months'  notice.  The  defendant  contends  that  this  is 
not  a  sublease,  but  that  it  is  an  assignment  of  the  lease  to  them,  or 
of  their  term.  It  is  said,  that  when  a  lessee  conveys  his  whole  estate 
to  an  alienee,  the  conveyance  amounts  to,  and  is  called,  an  assign- 
ment; and  that  the  distinction  between  an  assignment  and  a  lease 


744      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.   CH.  II. 

depends  solely  upon  the  quantity  of  interest  which  passes,  and  not 
upon  the  extent  of  the  premises  transferred.  An  assignment  creates 
no  new  estate,  but  transfers  an  existing  estate  into  new  hands;  an 
under-lease  creates  a  perfectly  new  estate.  Comyn  on  Land,  and 
Ten.  51,  52.  In  this  case,  these  general  principles  will  not  entirely 
satisfy;  and  we  must  learn  how  they  have  been  applied  in  particular 
instances.  We  find  that  though  a  lessee  make  an  instrument,  which 
by  its  terms  conveys  the  whole  of  his  interest  in  the  premises,  if  he 
reserve  to  himself  a  reversion  of  some  portion  of  the  term,  it  is  an 
under-lease,  and  not  an  assignment.  Archbold  on  Land.  &  Ten.  10. 
It  has  accordingly  been  held,  that  though  the  instrument  dispose  of 
the  whole  unexpired  term,  if  it  contain  a  covenant  to  surrender  the 
premises  on  the  last  day  of  the  term  it  is  an  under-lease  and  not  an 
assignment.  Post  v.  Kearney,  2  N.  Y.  394.  And  again,  if  there  be 
a  right  reserved  to  the  lessor  to  re-enter  on  breach  of  conditions, 
this  makes  a  sublease.  Doe  ex.  dem.  v.  Bateman,  2  Barn.  &  Aid. 
168.  So  it  has  been  held  that  a  reservation  of  a  new  rent  makes 
the  instrument  a  sublease.  Piggot  v.  Mason,  1  Paige,  412. 
Undoubtedly,  the  chief  of  these  is  the  reversion  of  some  portion  or 
the  term.  See  Piatt  on  Lease,  1  vol.  p.  10  et  sea.  Therefore, 
though  the  instrument  executed  to  Brower  does,  in  the  term  of  two 
years  and  seven  months  demised,  and  in  the  privilege  for  the  further 
term  of  four  years,  cover  the  whole  unexpired  term  demised  by  the 
plaintiff  to  the  Bronners;  yet  it  is  a  sublease  and  not  an  assignment. 
It  is  in  the  form  of  a  lease;  it  reserves  to  the  Bronners  rent  at  a  rew 
rate  and  at  a  new  time  of  payment;  it  stipulates  for  a  right  of  re-entry 
on  nonpayment  of  rent,  and  on  the  breach  of  certain  conditions  con- 
tained in  it;  it  provides  for  a  surrender  of  the  premises  to  them  on 
the  expiration  of  the  term.  Thus  the  Bronners  did  not  part  with 
their  whole  interest  in  the  premises  and  in  the  lease  thereof  to  them. 

The  case  of  Bedford  v.  Terhune,  30  N.  Y.  453,  cited  by  defendant, 
does  not  conflict  with  these  views.  There  no  agreement  to  under- 
let was  proven,  nor  any  fact  from  which  an  under-letting  could  be 
fairly  inferred.  The  court  recognized  the  general  rule,  that  a  trans- 
fer of  the  whole  unexpired  term  is  an  assignment  thereof  and  not 
an  under-letting,  and  it  declined  to  presume  from"  the  facts  proved, 
that  there  was  what  would  have  worked  a  forfeiture;  but  held,  in  the 
absence  of  evidence  of  the  bargain  between  the  lessees  and  their 
gns,  that  the  presumption  was,  that  the  latter  took  the  whole 
unexpired  term. 

Having  shown  that  the  Bronners  did  sublet  the  premises,  it  is 
plain  thai  it  was  without  the  written  consent  of  the  lessor.      *     *     * 

Judgment  reversed. 


II.   3-]  ESTATES    FOR    YEARS    OR    "TERMS."  745 

PECK  v.  INGERSOLL. 

7  New  York,  52S.  —  1S52. 

Action  for  rent.  Plaintiffs  were  lessees  of  Mrs.  Dunscombe, 
under  certain  conditions  stated  in  the  opinion,  and  had  sublet  a 
portion  of  the  premises  to  defendants.  Defendants  were  allowed, 
under  objection  and  exception,  to  prove  that  they  had  paid  the  rent 
claimed  by  plaintiff  to  Mrs.  Dunscombe  on  account  of  the  rent 
reserved  under  the  original  lease.  Judgment  for  defendants. 
Plaintiffs  appeal. 

Gardiner,  J.  — The  original  lease  between  Mrs.  Dunscombe  and 
the  plaintiffs  contained  a  covenant  of  re-entry  on  the  nonpayment  of 
rent  by  the  lessees  for  ten  days  after  it  fell  due.  The  jury  have 
found  that  the  ground  rent  due  to  Mrs.  Dunscombe  has  been  paid 
by  the  defendants,  the  lessees'  tenants ;  and  the  only  question  of  any 
importance,  is  whether  they  were  justified  in  making  such  payment 
and  entitled  to  have  the  amount  applied  in  discharge  of  their  rent 
due  the  plaintiffs. 

It  has  been  frequently  decided  upon  the  most  obvious  principles 
of  justice  that  if  an  under-tenant  is  compelled  to  pay  rent  to  the 
head  landlord  he  may  deduct  it  from  the  rent  due  to  his  immediate 
lessor;  or  if  the  sum  paid  exceeds  that  due  the  lessee  the  tenant 
may  in  an  action  of  assumpsit  for  money  paid  to  the  use  of  the  lessor, 
recover  the  excess.  1  Smith's  Leading  Cases,  4  Am.  ed.  202,  3  and 
4  marg.,  pages  73,  4,  5,  and  cases  there  cited;  4  Term,  511.  This 
privilege  upon  the  part  of  the  under-tenant  exists,  if  there  be  in  the 
head  landlord  a  legal  right  by  the  exercise  of  which  the  person  who 
pays  may  be  damnified  unless  he  satisfies  it.  1  Leading  Cases,  203. 
It  is  not  necessary  that  the  head  landlord  should  distrain  or  even 
demand  the  money  or  commence  or  threaten  a  suit.  The  right  to 
enforce  his  claim  in  this  way  will  make  the  payment  by  the  under- 
tenant compulsory  within  the  principle  of  the  decisions. 

In  this  case  the  original  lessor  had,  as  we  have  seen,  the  right  of 
re-entry.  The  under-tenant  was  authorized  to  protect  his  posses- 
sion against  the  exercise  of  this  right  by  paying  the  rent  to  the  head 
landlord.  Such  a  payment  is  not  voluntary,  and  there  is  no  ques- 
tion but  that  it  was  made  by  the  defendants  in  good  faith  with  an 
honest  purpose  to  shield  themselves  from  damage.  I  think  the  judg- 
ment of  the  common  pleas  should  be  affirmed. 

Judgment  affirmed. 


746      ESTATES   AS   TO   QUANTITY    AND   QUALITY.     [PT.  IV.  CH.  II. 

SANDERS  v.  PARTRIDGE. 

108  Massachusetts,  556.  —  1871. 

Action  on  contract  to  recover  rent.  The  original  lessees,  Jack- 
son and  Muzzey,  sublet  the  premises  and  afterwards  transferred  the 
lease  itself  to  Partridge  by  a  writing  endorsed  thereon,  but  not 
under  seal.  Partridge  received  the  rent  paid  by  the  under-tenants. 
Other  facts  appear  in  the  opinion.  The  case  was  reserved  for  the 
opinion  of  this  court. 

Wells,  J.  —  To  maintain  an  action  for  rent  requires  privity  of  con- 
tract or  privity  of  estate.     Either  will  suffice,  if  rent  is  due. 

When  a  lease  is  assigned,  and  the  assignee  enters  under  it,  he 
becomes  tenant  of  the  lessor;  he  is  bound  by  all  the  covenants  of 
the  lease  which  are  not  personal  to  the  lessee,  and  he  is  liable  to  the 
lessor  for  all  the  rents  which  accrue  while  he  holds  the  estate.  If 
there  is  no  express  covenant  for  the  payment  of  rent  contained  in 
the  lease,  then  the  covenant  implied  from  the  reservation  of  the  rent 
binds  the  lessee,  and  "  runs  with  the  land  "  so  as  to  bind  the  assignee 
also.  Patten  v.  Deshon,  1  Gray,  325;  Blake  v.  Sanderson,  1  Gray, 
332;  Croade  v.  Ingraham,  13  Pick.  33;  Waldo  v.  Hall,  14  Mass.  486; 
Smith,  Landl.  &  Ten.  287 ;  1  Washb.  Real  Prop.  326 ;  4  Blytherwood's 
Conveyancing,  388. 

In  the  present  case,  the  defendant  entered  into  the  enjoyment  and 
control  of  the  leased  premises,  under  what  purported  to  be  an  assign- 
ment of  the  lease.  If  that  transaction  operated  in  any  manner  to 
transfer  to  the  defendant  the  entire  leasehold  estate,  then  he  was 
in  as  assignee,  and  may  be  held  by  the  lessor  for  the  rent  which  fell 
due  while  he  so  held  the  estate. 

The  defendant  insists  that  the  lease,  being  under  seal,  could  be 
assigned  only  by  an  instrument  under  seal.  This  rule,  applied  to  an 
assignment  of  the  instrument  itself,  as  a  contract,  is  well  settled  at 
law.  Wood  v.  Partridge,  11  Mass.  488;  Brewer  v.  Dyer,  7  Cush.  337; 
Bridgham  v.  Tileston,  5  Allen,  371.  If,  therefore,  a  leasehold  estate 
can  be  transferred  only  as  an  assignment  of  the  instrument  by 
which  it  was  created,  this  objection  must  be  held  to  be  decisive. 

But  we  do  not  so  understand  the  law.  A  lease,  by  whatever  form 
or  instrument  it  is  made,  conveys  to  the  lessee  an  estate  or  interest  in 
tl  land.  He  may  in  turn  convey  to  another  any  subordinate 
interest,  or  his  entire  estate,  in  any  appropriate  form,  without  regard 
to  tin  form  in  which  he  acquired  his  own  title.  The  leasehold  estate 
may  be  transferred  by  devise;  by  sale  on  execution  as  a  chattel 
(Gen.    Sts.    c.   133,    §  49);  or  sale  by  an   administrator  as  personal 


II.  3  J  ESTATES    FOR    YEARS    OR    "TERMS."  747 

assets.  In  all  these  cases  the  purchaser  becomes  bound  to  the  lessor 
to  pay  the  rent  and  perform  the  covenants  that  run  with  the  land, 
because  the  law  imposes  that  obligation  upon  him  by  reason  of  his 
succession  to  the  estate  of  the  lessee.  The  same  result  follows  from 
any  transfer  by  the  lessee  of  his  entire  estate.  A  seal  is  not 
essential  to  such  transfer,  even  of  a  lease  for  more  than  seven  years. 
No  written  instrument  is  necessary,  except  to  satisfy  the  statute  of 
frauds.  Gen.  Sts.  c.  89,  §  2.  Even  if  the  provisions  of  §  3  are 
applicable  to  the  assignment  of  a  lease,  as  well  as  to  the  creation  of 
an  estate  by  lease,  a  seal  is  only  required  to  give  it  effect  against 
parties  other  than  the  assignor,  his  heirs  and  devisees,  and  persons 
having  actual  notice  thereof.  The  defendant  cannot  set  it  aside  for 
the  want  of  a  seal. 

The  real  question,  then,  is  whether  this  instrument  is  sufficient  to 
satisfy  the  statute  of  frauds,  as  an  assignment  of  an  estate  or 
interest  in  land. 

It  is  endorsed  upon  and  refers  to  the  original  lease;  and  the  lease 
was  delivered  with  it  to  the  assignee.  The  description  of  the 
premises,  the  terms  upon  which  they  are  to  be  held,  and  the  intent 
to  convey  the  estate  are  thus  all  made  to  appear  by  the  writing. 
"  All  our  right,  title  and  interest  in  and  to  the  within  lease  ' '  includes 
whatever  leasehold  estate  the  assignor  might  hold  by  virtue  of  that 
lease.  If  a  seal  had  been  attached,  there  would  be  no  question  of 
its  operation  to  convey  the  estate  of  the  assignor  in  the  land 
described  in  the  instrument  referred  to.  Patten  v.  Deshon,  1  Gray, 
325;  Blake  v.  Sanderson,  lb.  332. 

So  far  as  it  affects  the  sufficiency  of  the  writing,  under  the  statute 
of  frauds,  we  do  not  see  that  it  makes  any  difference  that  the  instru- 
ment referred  to  is  under  seal,  while  the  transfer  is  not.  The  refer- 
ence is  not  merely  to  the  instrument  itself  as  the  subject-matter  of 
the  assignment,  but  also  to  its  contents  as  defining  the  subject- 
matter  upon  which  the  assignment  is  intended  to  operate. 

We  are  of  the  opinion  that  the  writing  relied  on  as  an  assignment 
in  this  case  was  sufficient  to  satisfy  the  statute  of  frauds;  and  that 
between  the  parties  a  seal  was  not  rendered  necessary  to  its  opera- 
tion as  a  assignment  either  by  reason  of  the  length  of  the  term,  or 
from  the  fact  that  the  assignor  acquired  his  title  by  a  lease  under 
seal.     Tayl.  Landl.  &  Ten.  §  427,  and  cases  cited  in  notes. 

It  is  not  necessary  that  the  defendant  should  execute  any  writing, 
or  make  any  express  agreement.  His  obligation  is  implied  by  law 
from  his  acceptance  of  the  assignment,  and  his  entering  upon  the 
enjoyment  of  the  estate. 

The  report  states  such  an  acceptance  and  entry  by  the  defendant. 


748      ESTATES   AS   TO   QUANTITY   AND    QUALITY.     [PT.  IV.   CH.  II. 

His  employment  of  the  former  agent  of  his  assignor  to  collect  the 
rents  for  him  was  a  sufficient  entry.  He  is  liable,  then,  for  the  rent 
which  fell  due  July  i,  1870,  for  the  preceding  quarter,  unless  he  had 
before  that  time  ceased  to  hold  the  relation  of  tenant,  or  assignee  of 
the  lease.  The  liability  of  an  assignee,  upon  covenants  running 
with  the  land,  extends  only  to  such  as  are  required  to  be  performed 
while  he  holds  that  relation.  Patten  v.  Deskon,  1  Gray,  325.  It  is 
stated  in  the  report  that  "  on  or  about  May  iS,  1S70,  the  defendant 
executed  an  assignment  of  said  lease,"  by  a  writing  not  under  seal, 
to  one  Newhall.  If  Newhall  entered  under  that  assignment,  and  the 
defendant  ceased  to  collect  the  rents,  control  the  premises  or  have 
any  interest  therein,  before  the  end  of  the  quarter,  he  would  not  be 
liable  for  any  rent  which  should  afterwards  fall  due.  But  the  case 
does  not  find  that  Newhall  ever  entered  or  collected  the  rents  under 
his  assignment;  nor  that  the  defendant  at  any  time  ceased  to  collect 
and  receive  the  rents  through  his  agent;  and  any  inference  to  that 
effect  would  be  inconsistent  with  the  distinct  statement  of  the 
report  that  upon  the  entry  of  the  defendant  under  his  assignment 
for  the  lessees  "  the  rents  were  thereafter  collected  by  said  agent 
and  paid  over  to  the  defendant." 

Upon  the  report,  we  must  assume  that  the  defendant's  evidence 
went  no  farther  than  to  show  a  formal  instrument  of  assignment 
without  change  of  possession.  That  would  not  be  sufficient  to 
relieve  the  defendant  from  his  liability  as  assignee  of  the  lessees. 

It  is  stated  generally  in  the  text-books,  that  an  actual  entry  upon 
the  demised  premises,  by  an  assignee  of  the  lease,  is  not  requisite 
in  order  to  charge  him  with  the  performance  of  covenants  running 
with  the  land.  But  we  think  this  proposition  will  hold  good  only  in 
respect  of  assignments  by  deed  recorded  and  delivered;  which  are 
usually  regarded  as  effecting  a  transfer,  not  only  of  title,  but  also  of 
the  legal  possession.  An  assignment  without  deed  as  of  a  chattel 
interest  only,  requires  some  act  of  entry,  or  change  of  actual  posses- 
sion, to  complete  its  operation  and  divest  the  assignor,  of  responsi- 
bility which  arises  from  the  holding  of  the  estate.  Taylor,  Landl. 
fen.  §§  449-451. 

It  was  not  necessary  for  the  plaintiff  to  assent  to  the  assignment, 
or  recognize  the  assignee  as  his  tenant,  otherwise  than  by  his  suit 
for  the  rent. 

It  docs  not  appear  that  the  plaintiff  had  already  received  his  rent 

from   Jackson  and  Muzzy;  or   that  the  defendant  had  any  equitable 

defence    as    against    them.      The    fact    that    Jackson    and    Muzzy 

remained  liable  for  the  rent   upon   their  express  covenants  in  the 

e,  notwithstanding  their  assignment,  is  sufficient  explanation  of 


II.  4-]  ESTATES    FOR   YEARS   OR   "  TERMS."  749 

the  statement  that  the  suit  was  brought  with  the  plaintiff's  consent, 
and  at  the  request  of  Jackson  and  Muzzy. 

The  report  shows  that  the  defendant  became  responsible  to  the 
plaintiff  as  assignee  of  the  lessees,  and  does  not  disclose  any  facts 
sufficient  to  defeat  his  action  for  the  rent  which  thereafter  became 
due  upon  the  lease.  According  to  the  terms  of  the  report,  therefore, 
the  plaintiff  is  to  recover  judgment  for  the  full  quarter's  rent,  $1,450, 
and  interest. 

Judgment  for  the  plaintiff  accordingly. 


Morton,  J.,  in  McNEIL  v.  AMES. 

129  Massachusetts,  481.  — 1876. 

The  only  ground  upon  which  the  plaintiff  can  maintain  an  action, 
either  at  law  or  in  equity,  is  that  at  the  time  of  the  levy  of  the 
execution  in  favor  of  the  Lancaster  National  Bank,  Samuel  T.  Ames 
held  terms  for  years  or  leasehold  estates  in  the  premises  in  contro- 
versy, which  were  duly  seized  and  sold  under  said  execution. 
Assuming  this  to  be  so,  the  plaintiff  stands  in  the  position  of  an 
assignee  in  law  of  the  terms  for  years,  with  substantially  the  same 
rights  as  if  they  had  been  voluntarily  assigned  to  him  by  Ames.  His 
remedy  at  law  to  enforce  his  rights  as  such  assignee  is  plain,  ade- 
quate and  complete.  He  can  compel  the  under-lessees  to  pay  the 
rent  agreed  to  him,  and  can  enforce  the  performance  of  the  cove- 
nants of  the  lessor  in  her  leases.  Howland  v.  Coffin,  9  Pick.  52; 
Shelton  v.  Codman,  3  Cush.  318;  Patten  v.  Deshon,  1  Gray,  325; 
Hunt  v.  Thompson,  2  Allen,  341. 


b.   Restraints  o?i  alieriation  of  a  term. 

JACKSON  ex  dem.  WELDON  v.  HARRISON. 

17  Johnson  (N.  Y.),  66.  —  1819. 
\_Reported  herein  at  p.  731.] 


4.  Alienation  of  the  Rent  or  of  the  "Reversion." 

MOFFATT  v.  SMITH. 

4  New  York,  126.  —  1850. 

Assumpsit  for  use  and  occupation  of  a  dwelling-house.  One  Law- 
rence had  leased  the  premises  to  defendant  Smith  by  a  writing  not 
under  seal  for  the  term  of  two  years.     During  the  term  Lawrence 


750      ESTATES   AS   TO   QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

assigned  the  lease  to  plaintiff  Moffatt,  but  did  not  transfer  to  him 
the  reversion.  One  Shepherd  was  in  actual  possession  of  the 
premises.      Judgment  for  plaintiff.      Defendant  appeals. 

Ruggles,  J.  —  Payment  of  rent  by  the  defendant  Smith  to  the 
plaintiff  was  sufficient  prima  facie  to  show  that  Shepherd's  occupancy 
of  the  demised  premises  was  under  Smith,  the  defendant;  and  the 
case  stands,  therefore,  as  if  Smith  had  himself  been  the  actual  occu- 
pant under  the  lease  from  Lawrence. 

But  the  defendant  insists  that  this  action  cannot  be  maintained  in 
Moffatt's  name,  because  he  was  not  the  assignee  of  the  reversion  as 
well  as  of  the  rent.  It  has  been  settled  in  England  and  here,  that 
the  assignee  of  the  rent  alone,  without  the  reversion,  may  recover 
in  his  own  name  in  an  action  of  debt.  Alien  v.  Bryan,  5  Barn.  & 
Cres.  512;  Ards  v.  IVatkin,  Cro.  Eliz.  637,  651;  Demarest  v.  Wil- 
lard,  8  Cowen,  206;  Wiliard  v.  Tillman,  2  Hill,  277.  This  was  on 
the  ground,  formerly,  that  after  attornment  by  the  tenant,  the  privity 
of  contract  was  transferred  to  the  assignee  of  the  rent.  Robbins  v 
Cox,  1  Levinz,  22;  5  Barn.  &  Cres.  512,  n.  Attornment  by  the  ten. 
ant  is  now  unnecessary.  1  R.  S.  739,  §  146. '  The  consent  of  the 
lessee  was,  however,  in  this  case,  proved  by  the  payment  of  rent  to 
the  lessor's  assignee.  The  lease  from  Lawrence  to  Smith,  together 
with  the  lessor's  assignment  to  the  plaintiff,  and  the  payment  of 
rent  to  the  plaintiff,  established  the  relation  of  landlord  and  tenant 
between  the  plaintiff  and  the  defendant,  and  brought  the  case  within 
the  terms  of  the  statute  which  gives  the  action  for  use  and  occupa- 
tion to  any  landlord  where  the  demise  is  not  by  deed.3  The  plaintiff, 
by  the  lessor's  assignment  became  the  landlord,  under  whom  the 
defendant  held  the  demised  premises,  and  the  defendant  could  not 
dispute  his  title.  The  lease  of  the  18th  of  April,  1845,  and  the 
assignment  thereof,  were  properly  admitted  for  the  purpose  of  show- 
ing this  relation  between  the  parties;  and  the  previous  lease  of  the 
nth  of  January  was  also  properly  received  in  evidence,  to  show  the 
duration  of  the  term,  in  relation  to  which  the  latter  lease  referred  to 
the  former. 

The  offer  by  the  defendant  to  prove  the  premises  out  of  repair, 

was  rightly  rejected.     There  was  no  agreement  or  obligation  on  the 

part  of   the   lessor  to  repair  the    premises,   and    the    plaintiff   was 

therefore   entitled    to    recover  the  amount    of    rent    agreed    to    be 

paid.      *     *     * 

Judgment  affirmed.5 

» §  194,  N.  Y.  R.  P.  L.  —  Ed. 

[90,  N'.  Y.  R.  I'.  I-.  —  Ed. 
3  Sec  g  193,  N.  Y.  R.  P.  L.  —  ED. 


II.  4.]  ESTATES    FOR    YEARS    OR   "TERMS."  751 

FISHER  v.  DEERING. 
60  Illinois,  114. —  1871. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court. — It 
appears,  from  an  examination  of  the  authorities,  that  at  the  ancient 
common  law  a  lease  was  not  assignable  so  as  to  invest  the  assignee 
with  the  legal  title  to  the  rent.  Such  instruments  were,  in  that 
respect,  on  a  footing  with  other  agreements  and  choses  in  action. 
But  the  32  Hen.  8,  chapter  34,  §  1,  declared  that  the  assignee 
of  the  reversion  should  become  invested  with  the  rents.  But  not- 
withstanding this  enactment,  the  courts  held  that  the  assignee  of  the 
reversion  could  not  sue  for  and  recover  the  rent  unless  the  tenant 
should  attorn,  when  the  holder  of  the  reversion  might  recover  subse- 
quently accruing  rent  in  an  action  of  debt.  Marie  v.  Fake,  3  Salk. 
118;  Robbins  v.  Cox,  1  Levinz,  22;  Ardsv.  Walkins,  2  Croke's  Eliz. 
637;  Knowles'  Case,  1  Dyer,  5  D. ;  5  Barn.  &  Cress.  512,  and  the  note. 

In  Willims  v.  Hayward,  1  Ellis  &  Ellis,  1040,  after  reviewing  the 
old  decisions  on  this  question,  it  was,  in  substance,  held  that,  under 
the  32  Hen.  8,  an  assignee  of  the  rent,  without  the  reversion,  could 
recover  when  there  was  an  attornment,  and  that  such  an  assignee 
could,  under  the  4  of  Anne,  recover  without  an  attornment. 

The  courts  seem  to  have  proceeded  upon  the  ground  that  there 
could  be  no  privity  of  contract  unless  the  tenant  should  attorn  to 
the  assignee  of  the  reversion;  that,  whilst  the  assignment  of  the 
reversion  created  a  privity  of  estate  between  the  assignee  and  the 
tenant,  privity  of  contract  could  only  arise  by  an  agreement  between 
them.  Some  confusion  seems  to  have  got  into  the  books  from  call- 
ing the  purchaser  of  the  reversion  an  assignee  of  the  lease,  by  its 
passing  by  the  conveyance  as  appurtenant  to  the  estate.  But  where 
the  tenant  attorned  to  the  assignee  of  the  reversion  the  assignment 
became  complete,  and  then  there  existed  both  privity  of  estate  and 
of  contract  between  the  assignee  and  the  tenant,  and  by  reason  of 
the  privity  of  contract  the  assignee  might  sue  in  debt,  and  recover 
subsequently  accruing,  but  not  rent  in  arrear  at  the  time  he  acquired 
the  reversion. 

To  give  the  assignee  of  the  reversion  a  more  complete  remedy, 
the  4  and  5  Anne,  chapter  16,  section  9,  was  adopted,  dispensing 
with  the  necessity  of  an  attornment  which  the  courts  had  held  to  be 
necessary  under  the  32  Hen.  8,  to  create  a  privity  of  contract.  But 
this  latter  act  has  never  been  in  force  in  this  State,  and  hence  the 
decisions  of  the  British  courts,  made  under  it,  are  not  applicable. 
In  many  States  of  the  Union  this  latter  act  has  been  adopted,  and 
the  decisions  of  their  courts  conform,  of  course,  to  its  provisions. 


752      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.   IV.  CH.  II. 

But  we  having  adopted  the  common  law  of  England,  so  far  as  the 
same  is  applicable  and  of  a  general  nature,  and  all  statutes  or  acts 
of  the  British  parliament  made  in  aid  of,  and  to  supply  defects  of 
the  common  law,  prior  to  the  fourth  year  of  James  the  First,  except 
certain  enumerated  statutes,  and  which  are  of  a  general  nature  and 
not  local  to  that  kingdom,  they  are  declared  to  be  the  rule  of 
decision,  and  shall  be  considered  of  full  force  until  repealed  by  legis- 
lative authority.  Gross'  Comp.  1869,  416.  It  then  follows  that  the 
32  Hen.  8,  chapter  34,  §  1,  is  in  force  in  this  State,  as  it  is 
applicable  to  our  condition,  and  is  unrepealed.  And  we  must  hold, 
that  the  construction  given  to  that  act  by  the  British  courts  was 
intended  also  to  be  adopted. 

The  facts  in  this  case  show  such  a  privity  of  contract  as  brings  it 
fully  within  the  rule  announced  in  the  above  cases.  Appellee  paid 
to  appellant  several  instalments  of  rent  falling  due  under  the  lease 
after  it  was  assigned  to  him.  By  paying  the  rent,  the  lessee  fully 
recognized  the  appellant  as  his  landlord,  and  created  the  necessary 
privity  of  contract  to  maintain  the  action. 

The  case  of  Chapman  v.  McGrew,  20  111.  101,  announces  a  contrary 
doctrine.  In  that  case  this  question  was  presented,  and  notwith- 
standing the  lessee  had  fully  recognized  the  assignee  of  the  lease  as 
his  landlord,  it  was  held  that  the  lessor  of  the  premises  might  main- 
tain an  action  to  recover  the  rent.  In  that  case,  the  fact  that  the 
lessee  had  attorned  to  the  assignee,  was  given  no  weight,  and  the 
fact  that  such  privity  was  thereby  created  as  authorized  the  assignee 
of  the  lease  to  sue  for,  and  recover  the  rent,  was  overlooked.  In 
that,  the  decision  was  wrong.  The  right  of  action  could  not  be  in 
both  the  lessor  and  his  assignee,  and  the  privity  thus  created  gave 
it  to  the  latter. 

The  subsequent  case  of  Dixon  v.  Buell,  21  111.  203,  only  holds 
that  such  an  assignee,  whether  he  holds  the  legal  or  equitable  title 
to  the  lease,  may  have  a  claim  for  rent  growing  out  of  the  lease, 
probated  and  allowed  against  the  estate  of  the  lessee.  That  case 
has  no  bearing  on  the  case  at  bar. 

Judgment  reversed. 


II.   5-]  ESTATES    FOR    YEARS    OR    "TERMS."  753 

5.  Rights  and  Duties  of  Landlord  and  Tenant  Independent 

of  Covenants 

a.   Landlord. 

(1.)  May  Protect  Reversion,  But  Has  no  Action  for  an  invasion  of  the 

Possessory   Right. 

FRENCH  v.  FULLER. 

23  Pickering,  104.  —  1839. 

Wilde,  J.,  delivered  the  opinion  of  the  court.  —  It  was  testified 
by  one  of  the  witnesses,  that  the  tenements,  for  the  entering  of 
which  the  defendant  is  charged  as  a  trespasser,  were,  at  the  time, 
occupied  by  under-tenants;  and  the  fact  we  understand  is  admitted; 
and  if  so,  it  seems  quite  clear,  that  this  action  cannot  be  main- 
tained. To  maintain  an  action  of  trespass  quare  clausum  for  an 
injury  done  to  real  property,  the  plaintiff  must  prove,  that  he  has 
the  actual  possession  of  the  property;  for,  though  the  freehold  of 
the  land  may  be  in  him,  he  cannot  maintain  the  action,  if  the  land, 
at  the  time  of  the  trespass,  was  in  the  lawful  possession  of  another. 
It  is  not  denied  that  this  is  the  general  rule,  but  it  has  been  argued, 
that  when  land  is  in  the  possession  of  a  tenant  at  will,  the  rule  is  not 
applicable,  as  .the  possession  of  a  tenant  at  will  is  the  possession  of 
his  landlord;  and  the  case  of  Starr  v.  Jackson,  11  Mass.  R.  519,  is 
relied  on  in  support  of  this  position.  But  it  is  very  clear,  that  the 
decision  in  that  case  is  no  authority  in  support  of  the  present  action. 
It  was  decided  in  that  case,  that  trespass  quare  clausum  /regit  lies  for 
the  owner  of  land  in  the  possession  of  his  tenant  at  will,  where  the 
injury  affects  the  permanent  value  of  the  property,  as  the  cutting 
down  of  trees,  destruction  of  buildings,  and  like  acts.  There  can 
be  no  doubt,  that  for  such  an  injury  the  owner  of  the  land  would  be 
entitled  to  a  remedy;  the  perplexing  doubt  in  that  case,  was  as  to 
the  form  of  the  action,  whether  it  should  be  trespass  or  trespass  on 
the  case.  In  the  case  under  consideration,  no  such  question  can  be 
raised;  for  upon  the  facts  argued  no  injury  has  been  done  to  the 
freehold,  and  the  plaintiff  is  not  entitled  to  an  action  in  any  form. 
All  that  appears  by  the  statement  of  facts,  is,  that  the  defendant  had 
been  on  the  premises  at  sundry  times,  exercising  act  of  ownership, 
such  as  demanding  rent  and  letting  some  of  the  tenements  to  the 
tenants  in  possession.  It  does  not  even  appear,  that  the  entry  was 
tortious,  so  that  the  tenants  could  support  an  action  of  trespass. 
But  however  this  may  be,  no  actual  damage  was  done  to  any  one; 
and,  most  certainly,  the  plaintiff  cannot  maintain  an  action  for  the 

LAW  OF  PROP.   IN  LAND  —  4S 


754      ESTATES   AS   TO    QUANTITY    AND   QUALITY.     [PT.  IV.  CII.  II. 

mere  disturbance  of  the  possession.  In  the  case  of  Little  v.  Palister, 
3  Greenleaf,  6,  the  defendant  entered  upon  land  in  the  possession  of 
a  tenant  at  will,  and  threw  down  a  fence  erected  by  the  tenant  for 
his  own  convenience;  and  it  was  held,  that  the  landlord  could  not 
maintain  trespass,  or  any  other  action,  for  the  wrong,  the  injury 
being  wholly  to  the  rights  of  the  tenant.  We  think  the  decision  in 
that  case  is  unquestionably  correct,  and,  consequently,  that  this 
action  cannot  be  maintained. 

I  think  it  proper  to  add,  to  prevent  misapprehension,  that  it  must 
not  be  inferred,  that  the  judgment  of  the  court  would  be  different, 
if  this  case  had  been  in  all  respects  similar  to  that  of  Starr  v.  Jack- 
son. Since  the  decision  of  that  case,  the  law  in  respect  to  the  rights 
of  tenants  at  will  has  been  materially  changed.  By  the  Revised 
Stat.  c.  6o,  §  26,  it  is  enacted,  "  that  ail  estates  at  will  may  be 
determined  by  either  party,  by  three  months'  notice  in  writing,  for 
that  purpose,  given  to  the  other  party."  A  similar  provision  was 
contained  in  a  previous  statute. 

Since  this  change  of  the  law  regulating  the  manner  of  terminating 
estates  at  will,  the  possession  of  a  tenant  at  will  before  notice,  and 
for  three  months  after,  can  in  no  sense  be  held  to  be  the  possession 
of  the  landlord.  The  tenant  has  not  only  the  possession,  but  also 
the  right  of  possession,  and,  in  this  respect,  he  stands  on  the  same 
footing  as  a  tenant  for  a  term  certain.  The  landlord's  remedy, 
therefore,  for  an  injury  to  his  freehold,  or  reversionery  interest  by  a 
stranger,  is  by  an  action  on  the  case  and  not  by  an  action  of  trespass 
quare  clausum  f  regit. 

Plaintiff  nonsuit. 


b.    Tenant. 

(1.)  Has  Right  to  Estovers  and  Emblements,  But  Must  Not  Commit 

Waste.1 

(2.)  Distress  for  Rent.5 

PRESCOTT  v.  DE  FOREST. 

16  Johnson,  159.  —  1819. 

In  error,  on  certiorari  to  a  Justice's  Court. 

This  was  an  action  of  trover,  brought  in  the  court  below,  by  the 
plaintiff  in  error.  The  material  facts  in  the  case  are  as  follows: 
(  )m  the  1st  of  February,  181 7,  Stewart  leased  a  house  in  Pearl  street, 

1'art  III.— Ed. 
'Sec  also  In  -  1  oil  v.  Sergeant,  supra,  p.  86,  for  further  discussion  of  the  sub- 
ject.     Distress  has  been   abolished    in  most  of   the   States,  including  New  York 


IT.   5.]  ESTATES    FOR    YEARS    OR    "TERMS."  75J 

in  the  city  of  New  York,  to  Samuel  Satterlee,  for  one  year,  from  the 
1st  of  May,  1817;  Satterlee  then  leased  part  of  the  house,  retaining 
the  front  part  as  a  store,  to  the  plaintiff,  for  the  annual  rent  of  $1,000, 
payable  quarterly,  for  the  same  term  at  which  he  had  taken  it.  On 
the  1st  of  February,  1818,  Satterlee  obtained  a  new  lease  of  the  house 
for  a  year  from  the  first  day  of  ensuing  May.  On  the  2d  of  March 
1818,  the  plaintiff  having  only  paid  Satterlee  $32  of  her  rent,  he  dis- 
trained her  goods,  upon  the  premises,  and  sold  them  at  public  auction, 
in  due  form  of  law.  The  defendant  was  a  purchaser  of  several  arti- 
cles of  furniture  at  this  sale,  and  there  had  been  a  demand  and 
refusal  of  them  before  suit  was  brought. 

It  was  proved,  that  the  plaintiff  had  said,  that  Satterlee  had  a 
right  to  distrain  her  goods  for  the  rent,  and  expressed  gratitude  for 
his  forbearance;  but  at  the  time  of  the  demise  from  Satterlee  to  her, 
nothing  was  said  as  to  the  right  to  distrain,  and  there  was  no  agree- 
ment that  he  should  have  that  right.  It  was  also  proved  by  two 
constables,  and  another  witness,  that  they  had  each  known  one 
instance  in  the  city  of  New  York,  in  which  the  party  distraining  for 
rent  had  no  reversionary  interest  in  the  leased  premises,  and  that  no 
objection  was  taken  on  that  account.  The  plaintiff  objected  to  all 
evidence  of  this  kind,  but  the  objection  was  overruled.  A  verdict 
and  judgment  were  taken  for  the  defendant  below. 

Platt,  J.,  delivered  the  opinion  of  the  court.  The  lease  from 
Satterlee  to  the  plaintiff,  for  a  part  of  the  house,  for  the  whole  term, 
must  be  deemed  an  assignment,  and  not  an  underletting.  There  was 
no  privity  of  estate  between  the  plaintiff  and  Satterlee,  but  a  privity 
of  contract  merely.  The  plaintiff  did  not  hold  as  tenant  to  Satterlee, 
but  as  tenant  to  Stewart,  the  original  lessor  and  reversioner.  The 
right  of  distress  is  incident  to,  and  inseparable  from,  the  reversion; 
under  such  an  assignment  of  the  whole  term,  Stewart  had  a  right  to 
distrain  on  the  assignee,  and  a  double  right  of  distress  cannot  exist 
in  Satterlee  and  in  Stewart,  unless  there  was  an  express  agreement 
for  that  purpose  between  the  assignee  and  Satterlee.  Stewart,  by 
reason  of  the  privity  of  contract  and  estate,  may  sue  the  plaintiff, 
or  distrain  her  goods,  for  the  rent  due  to  him;  but  Satterlee,  having 

(1846).  The  landlord's  remedies  for  rent  at  present  depend  on  the  circumstance 
of  the  case,  but  one  or  more  of  the  following  courses  are  usually  open  to  him: 
(a)  Action  of  debt;  (b)  on  contract;  (c)  covenant,  express  or  implied,  the  latter  if 
rent  is  reserved,  but  there  is  no  express  agreement  for  its  payment;  (d)  re-entry 
or  ejectment  if  the  right  of  re-entry  is  expressly  reserved;  (e)  summary  proceed- 
ings to  recover  the  land  in  the  cases  provided  for  in  such  statutes  as  that  of 
New  York  Code  Civ.  Proc.  £§  2231-2265;  (f)  under  some  circumstances  an 
action  for  use  and  occupation.     See  N.  Y.  R.  P.  L.,  §  190.  —  Ed. 


756      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.   CII.  II. 

a  privity  of  contract  only,  without  privity  of  estate,  and  without 
express  power  to  distrain,  can  only  sue  upon  the  contract.  'Wood- 
fall  L.  &  T.  285,  286,  196  ;  2  Wils.  375;  1  Term  Rep.  441.  There 
is  no  difference,  in  this  respect  between  an  assignment  of  the  whole 
of  the  demised  premises,  or  a  lease  or  assignment  of  the  whole  term, 
in  a  part  of  the  premises.  Nor  can  the  second  lease  to  Satterlee,  for 
the  year  ensuing,  that  is,  from  the  1st  of  May,  1818,  to  the  1st  of 
May,  1819,  make  any  difference  in  the  case.  That  was  a  lease  to 
commence  in  futuro,  and  cannot  operate  as  an  assignment  of  the 
reversion,  which  still  remained  in  Stewart.  By  granting,  on  the  1st 
of  February,  the  new  lease  to  commence  on  the  1st  of  May  following, 
Stewart  did  not  transfer  or  lose  his  right  of  distraining  for  the  rent, 
under  the  old  lease.  And  whether  the  new  lease  for  the  ensuing 
year  was  granted  to  Satterlee  or  a  stranger,  could  make  no  differ- 
ence in  the  rights  of  the  parties  in  relation  to  the  first  lease. 

The  plaintiff's  declaration,  that  Satterlee  had  a  right  to  distrain, 
must  be  ascribed  to  her  ignorance  of  her  legal  rights,  and  cannot  vary 
the  rule  of  law.  The  evidence  of  custom  in  New  York  was  futile, 
and  ought  not  to  have  been  received.  The  witnesses,  on  that  point, 
failed  to  prove  any  custom  in  regard  to  distress  for  rent  in  such 
cases;  but  if  they  had  proved  it,  we  cannot  allow  any  custom  in  this 
State  to  control  the  general  rules  of  the  common  law.  Where  a 
custom  is  of  such  antiquity  that  we  cannot  trace  its  origin,  it  is 
coeval  with  the  common  law  itself;  and  then  it  forms  an  exception 
to  the  general  rule;  because,  there  is  ground  to  presume  that  they 
are  of  equal  authority,  and  that  the  same  power  which  established 
the  rule,  also  made  the  exception.  If  Satterlee  had  no  right  to  dis- 
train and  sell  the  goods,  it  necessarily  follows,  that  the  defendant, 
though  a  bona  fide  purchaser  for  valuable  consideration,  acquired  no 
title.  It  was  an  unauthorized  sale,  and  transferred  no  right.  I  am, 
therefore,  of  opinion,  that  the  judgment  ought  to  be  reversed. 

Judgment  reversed. 


(3.)  Is  Estopped  to  Deny  His  Landlord's  Title. 
Denio,  C.  J.,  in  VERNAM  v.  SMITH. 

15  New  York,  327.  —  1S57. 

It  was  a   good   plea,   at    common    law,  in   an    action   of  debt   for 

rent,    by  virtue    of    a    parol     demise,    of    upon    a    lease   not    under 

in  ■   seal   of    the  lessee,  that  the  plaintiff  had  nothing  in  the  tene- 

ts  at   the  time  of  the  lease;  Co.   Lttt,   by  Thomas,  415;  Sylli- 

van  v.  Stradling,  2  Wils.  217;  and  the  reason  of  this  is,  according  to 


II.   5-]  ESTATES    FOR    YEARS    OR   "TERMS.*'  757 

Lord  Coke,  that  "  in  every  contract  there  must  be  quid  pro  quo,  and 
therefore,  if  the  lessor  hath  nothing  in  the  land,  the  lessee  hath  not 
quid  pro  quo,  nor  anything  for  which  he  should  pay  a  rent."  If  the 
lease  be  made  by  deed  indented,  then  both  parties  are  concluded, 
and  this  plea  cannot  be  interposed.  The  lessee  in  that  case  is 
bound  by  a  technical  estoppel,  by  deed,  to  deny  that  the  term  passed 
by  the  lease.  Further  exceptions  to  the  rule  of  the  common  law, 
have  been  created  by  the  modern  doctrine  of  equitable  estoppel, 
arising  out  of  circumstances  unconnected  with  a  deed.  Thus,  it  has 
been  very  often  decided  that  in  debt  or  assumpsit  for  use  and  occu- 
pation, the  defendant  cannot  deny  the  title  of  the  lessor.  Lewis  v. 
Willis,  i  Wils.  314;  Cooke  v.  Loxley,  5  Term.  R.  4;  Phipps  v.  Schul- 
thrope,  1  Barn.  &  Aid.  50;  Fleming  v.  Gooding,  10  Bing.  549;  Dolby 
v.  lies,  11  Adolph.  &  Ellis,  335;  Curtis  v.  Spitty,  1  Bing.  N.  C.  15; 
Agar  v.  Young,  1  Carr.  &  Marsh.  78.  The  action  for  the  use  and 
occupation  is  given  by  statute,  and  it  arises  where  there  has  been 
an  enjoyment  by  the  defendant  of  the  plaintiff's  lands  or  tenements, 
under  a  demise  or  agreement  not  made  by  deed.  Stat.  11  Geo.  II., 
ch.  19,  §  14;  1  R.  S.  748,  §  26.  The  statutes  do  not  declare  that 
the  defendant  in  this  action  shall  be  precluded  from  pleading  nil 
habuit  in  tenementisj  but  inasmuch  as  the  action  is  given  for  the  use 
and  occupation,  which  presupposes  an  entry  and  enjoyment  of  the 
premises,  the  courts  have  constantly  held  that  the  defendant  was 
estopped  from  showing  that  the  lessor  was  not  the  owner  of  the  land. 
The  judges  have  applied  the  equitable  principles  referred  to  in  the 
construction  of  the  statute.  "  I  cannot  help  thinking,"  said  Lord 
Chief  Justice  Willes,  "  but  that  they,  the  Legislature,  intended  to 
take  away  the  plea  of  nil  habuit,  etc.,  as  if  they  had  said,  after  the 
tenant  has  enjoyed  the  land  by  a  demise  or  permission  of  the  land- 
lord, he  shall  not  be  permitted  to  pry  into  the  title,  and  pick  holes 
in  settlements  and  wills."  Syllivan  v.  Stradling,  supra.  Lord  Ken- 
yon,  in  Cooke  v.  Loxley,  said  that  the  rule  precluding  the  tenant  in 
this  class  of  actions  from  contesting  the  title  of  the  landlord,  was 
not  a  mere  technical  rule,  but  one  founded  in  public  convenience 
and  policy. 


758      ESTATES   AS   TO  QUANTITY    AND    QUALITY.     [PT.   IV.  CH.  II. 

6.  Rights    under    Covenants    Implied  in  Law. 

a.   Implied  covenant  for  quiet  enjoyment. 

MAYOR  v.  MABIE. 

13  New  York,  151.  —  1855. 

Action  for  rent.  Defendant  seeks  to  recoup  damages  suffered  by 
him  by  reason  of  the  breach  of  an  implied  covenant  for  quiet  enjoy- 
ment.    Judgment  for  plaintiff  below.     Defendant  appeals. 

Denio,  J.  *  *  *  There  is  not  found  in  the  contract  set  out 
in  the  complaint  any  express  undertaking,  on  the  part  of  the  cor- 
poration, that  Mabie  shall  have  and  enjoy  the  interest  conveyed;  but 
the  defendants  insist  that  there  is  one  implied  in  law.  If  the  grant 
in  question  was  a  lease  of  corporeal  property  for  a  term,  there  is  no 
doubt  whatever  but  that,  independently  of  the  statute  which  we 
shall  presently  consider,  there  would  be  an  implied  covenant  by  the 
grantors  for  quiet  enjoyment  by  the  grantee.  JVoke'  s  Cases,  4  Coke, 
80,  b.j  Barney  v.  Keith,  4  Wend.  502;  8  Paige,  597:  Piatt  on  Cove- 
nants, 40.  But  the  right  to  wharfage,  which  was  the  subject  con- 
veyed by  the  corporation  to  Mabie,  was  an  incorporeal  right;  and 
it  does  not  necessarily  follow  that  all  the  legal  incidents  of  a  lease 
for  years,  of  land,  attach  to  the  conveyance.  On  examination  of 
the  cases,  however,  I  have  come  to  the  conclusion  that  the  principle 
is  not  limited  to  a  demise  of  tangible  property,  but  that  it  applies  in 
its  full  force  to  conveyances  of  incorporeal  rights.     *     *     * 

Other  instances  of  covenants  of  quiet  enjoyment,  implied  in  con- 
veyances of  incorporeal  hereditaments,  will  be  found  referred  to  in 
Piatt  on  Covenants,  58. 

The  main  object  of  a  covenant  for  quiet  enjoyment  is  to  protect 
the  lessee  from  the  lawful  claims  of  third  persons  having  a  title  para- 
mount to  the  lessor;  but  such  a  covenant,  when  fully  written  out, 
provides  also  for  the  protection  of  the  lessee  against  the  unlawful 
entry  of  the  lessor  himself.  Piatt  on  Covenants,  312.  Conse^" 
quently,  where  the  law  implies  such  a  covenant  from  the  character 
and  terms  of  a  conveyance  not  containing  any  express  engagement, 
the  scope  of  the  implied  guaranty  should  be  equally  extensive.  The 
case  of  Seddon  v.  Senate,  above  mentioned,  is  a  striking  application  of 
that  principle ;  and  other  cases  may  be  found  in  the  section  on  implied 
covenants  in  Mr.  Piatt's  treatise  (p.  40,  et  seqJ)  It  is  not,  however, 
eyj  ry  mere  trespass  by  the  lessor  upon  the  demised  premises  which 
will  amount  to  a  breach  of  this  covenant!  AltlTough  the  covenantor 
cannot  avail   himself  of   the  subterfuge    that  his  entry  was  unlawful, 


II.  6.]  ESTATES    FOR   YEARS   OR   "TERMS."  759 

and  he,  therefore,  a  trespasser  to  avoid  the  consequences  of  his  own 
wrong,  still,  to  support  the  action  of  covenant,  the  entry  must  be 
made  under  an  assumption  of  title.  Piatt  on  Covenants,  319,  320. 
It  need  not  be  averred  in  the  pleading  that  the  grantor  acted  under  a 
claim  of  title;  but  if  the  character  of  the  act  be  such  as  reasonably 
to  show  that  the  defendant  acted  upon  such  an  assumption,  the 
action  will  be  sustained.  Thus,  where  the  defendant  demised  to  the 
plaintiff  with  a  full  covenant  for  quiet  enjoyment,  certain  premises,  ! 
to  which  a  pew  in  a  church  was  appurtenant,  and  the  lessee  brought 
covenant  against  him,  alleging  that  he  had  disturbed  him  in  the  use 
and  enjoyment  of  the  pew  by  sometimes  sitting  in  it  himself,  and  at 
Other  times  putting  other  persons  into  it,  and  by  locking  it  up  on 
other  occasions,  the  objection  being  taken  that  these  acts  were  mere 
trespass,  the  court  said:  "The  act  itself  asserts  a  title;  for  the 
defendant  locked  up  the  pew,  which  is  as  strong  an  assertion  of  right 
as  can  well  be  imagined."  Loydv.  Tomkins,  1  Term.  R.  671.  The 
acts  imputed  to  the  plaintiffs  in  this  case  are  equally  unequivocal; 
and  when  we  consider  that  they  were  a  municipal  corporation,  acting 
by  agents,  and  were  moreover  the  general  owners  of  the  wharfage, 
and  that  they  authorized  and  directed  those  agents  to  assume  a  con- 
trol over  the  berths  and  locations  which  ships  were  accustomed  to 
occupy,  and  granted  such  berths  and  locations  to  ship-masters  for 
a  compensation  to  be  paid  by  them,  we  must  infer  that  this  was 
done  under  some  claim  of  right. 

These  considerations  have  led  me  to  the  conclusion  that  there  was 
in  this  case,  upon  the  principles  of  the  common  law,  an  implied 
covenant  by  the  plaintiffs  to  abstain  from  interfering  with  the  right 
which  they  granted  to  Mabie,  in  the  manner  which  the  answer  charges 
them  with  having  done.  1^  remains  only  to  inquire  whether  the 
statute  has  forbidden  the  implication  of  a  covenant  of  quiet  enjoy- 
ment in  such  a  case  as  this. 

The  Legislature  has  declared  that  "  no  covenant  shall  be  implied 
in  any  conveyance  of  real  estate,  whether  such  conveyance  contain 
special  covenants  or  riot."  1  R.  S.  738,  §  140. '  If  this  grant  of 
wharfage  for  one  year  is  a  conveyance  of  real  estate,  no  covenant 
can  be  implied  in  it,  and  there  can  be  no  recoupment  for  an  alleged 
breach  of  covenant.  I  am  of  opinion  that  it  is  not  a  conveyance  of 
real  estate.  Section  10  of  title  5,  of  the  same  chapter  of  the  Revised 
Statutes  in  which  the  foregoing  provision  is  found,  defines  certain 
of  the  terms  there  used,  thus:  "  The  terms  '  real  estate  '  and 
'  lands,'  as  used  in  this  chapter,  shall  be  construed  as  coextensive 
in   meaning  with  lands,    tenements  and   hereditaments."      Id.  750. 

1  §  216,  N.  Y.  R.  P.  L.  —  Ed. 


760      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CII.  II. 

In  a  subsequent  chapter  of  the  Revised  Statutes,  that  which  relates 
to  the  proof  and  recording  of  conveyances,  there  is  another  definition 
of  one  of  these  terms,  as  follows:  "  The  term  '  real  estate,'  as  used 
in  this  chapter,  shall  be  construed  as  coextensive  in  meaning  with 
lands,  tenements  and  hereditaments,  and  as  embracing  all  chattels 
real,  except  leases  for  a  term  not  exceeding  three  years."  2  R.  S. 
762,  §  36.  There  is  much  significance  in  the  language  added  to  the 
first  definition  when  the  same  terms  came  again  to  be  defined  for 
another  purpose.  It  is  a  virtual  declaration  that  the  words  employed 
to  define  real  estate,  in  the  first  definition,  would  not  embrace 
chattels  real.  We  must  intend  that  in  those  definitions,  language 
was  used  with  great  care  and  discrimination.  The  object  being  to 
remedy,  by  precise  definitions,  the  inconvenience  arising  from  the 
use  of  words  to  which  different  meanings  might  otherwise  be 
attached,  we  cannot  suppose  that  any  vagueness  of  expression  would 

f  be  indulged.  In  comparing  these  two  definitions  with  each  other, 
we  arrive  at  a  pretty  satisfactory  conclusion  that  the  Legislature 
understood  the  words,  "  lands,  tenements  and   hereditaments,"  as 

,  excluding  terms  for  years  in  land.  And  in  this  I  think  they  were 
clearly  right.  The  Legislature  was  dealing  with  terms  of  art  and  is 
presumed  to  have  used  them  in  their  technical  sense.  We  might  lay 
out  of  view  in  this  case  the  word  "  lands"  for  that  word  always 
refers  to  something  corporeal;  but  the  other  two  words  may  be  cor- 
rectly applied  to  an  estate  in  incorporeal  hereditaments.  Now  a 
term  for  years  in  lands  (and  a  fortiori  m  incorporeal  rights),  is  not 
in  law  a  tenement  or  a  hereditament.  Coke  says  that  "  tenementum, 
tenement,  is  a  large  word,  to  pass  not  only  lands  and  other  inherit- 
ances which  are  holden  but  also  offices,  rents,  common  profits 
apprender  out  of  lands  and  the  like,  wherein  a  man  hath  any  frank- 
tenement,  aud  whereof  he  is  seized  ul  de  libero  te/ieme/ito."  1  Co.  Litt. 
by  Thomas,  219.  "  But  hereditament,  "  he  says,  "is  the  largest 
word  of  all  that  kind;  for  whatsoever  may  be  inherited  is  a  heredita- 
ment, be  it  corporeal  or  incorporeal,  real,  personal  or  mixed."  Id. 
The  first  of  these  definitions  requires  that  the  estate,  or  interest  to 
amount  to  a  tenement,  should  be  a  freehold  at  least;  and  to  be 
termed  a  hereditament,  according  to  the  second,  it  must  be  descend- 
ible by  inheritance.  Terms  for  years  fall  within  the  definitions  of 
things  personal.  They  go  to  the  executors  like  other  chattels,  and 
although  they  are  denominated  chattels  real  to  distinguish  them 
from  mere  movables,  they  are  not,  when  speaking  with  legal  accu- 
1  onsidered  real  estate.  2  Bl.  Com.  386.  In  The  People  v. 
Westervelt,  17  Wend.  674,  the  meaning  of  the  terms  "  real  estate  " 
and  "  tenements,"  at  common  law,  was  shown  to  exclude  terms  for 


II.  6.]  ESTATES    FOR    YEARS    OR    "TERMS.'  761 

years  and  other  chattel  interests;  and  it  was  furthermore  shown 
that  these  words  were  used  in  that  sense  in  that  part  of  the  Revised 
Statutes  which  relates  to  the  redemption  of  lands.  The  Supreme 
Court,  it  is  true,  in  Kinney  v.  Watts,  14  Wend.  $&,  held  that  the  pro- 
vision in  the  Revised  Statutes,  forbidding  the  implication  of 
covenants,  embraced  leases  and  other  conveyances  of  terms  for 
years  where  the  term  exceeded  three  years;  but  this  conclusion  was 
arrived  at  by  inadvertently  applying  to  the  case  the  second  definition 
of  real  estate,  which  is  found  in  the  chapter  respecting  the  recording 
of  conveyances.  The  learned  judge  who  delivered  the  opinion  does 
indeed  say  that  the  legal  import  of  the  terms  would  be  the  same 
which  he  gave  them  if  there  had  been  no  legislative  definition;  but 
having  found,  as  he  supposed,  a  statutory  definition  which  precisely 
suited  the  case,  he  examined  less  attentively  than  he  otherwise  would 
have  done  as  to  their  meaning  at  common  law.  Chancellor  Wal- 

worth had  occasion  to  examine  this  question  in  Tone  v.  Brace,  11 
Paige,  566;  and  he  held  that  the  Supreme  Court  in  Kinney  v.  Watts, 
fell  into  an  error,  and  that  the  statute  referred  to  had  no  application 
to  terms  for  years.  See  also  8  Paige,  597,  and  1  Clarke's  Ch.  R.  507. 
I  am  satisfied  that  the  construction  adopted  by  the  chancellor  is  the 
true  one,  and  that  there  is  nothing  in  the  provision  of  the  Revised 
Statutes  under  examination  which  forbids  us  from  finding,  in  the 
grant  in  question,  an  implied  covenant  against  the  acts  of  the  grantors 
and  against  others  claiming  by  lawful  title.  The  result  would  be  the 
same  if  the  question  had  arisen  upon  a  lease  for  years  of  land.  The 
evidence  offered  by  the  defendants  at  the  trial  should  have  been 
received.  If  such  evidence  shall  be  produced  on  a  future  trial,  it 
will  still  be  competent  for  the  plaintiffs  to  show,  if  they  are  able, 
that  the  acts  complained  of  as  a  disturbance  of  the  rights  of  the 
lessee,  were  done  in  the  lawful  exercise  of  a  power  to  regulate  the 
disposition  of  vessels  in  the  public  docks,  under  any  ordinances  or 
legal  regulations  which  may  exist  upon  that  subject.  We  do  not 
intend  to  express  any  opinion  upon  that  question,  the  evidence  not 
being  before  us.  The  judgment  of  the  Superior  Court  must  be 
reversed,  and  a  new  trial  ordered  in  that  court. 


y62      ESTATES   AS   TO  QUANTITY   AND   QUALITY.     [PT.   IV.  CH.  II. 

DALY  v.  WISE. 

132  New  York,  306.  —  1892. 

Action  for  rent  on  a  lease  of  a  furnished  house.  Defendant 
objects  that  the  house  was  in  an  untenantable  condition  and  that  he 
had  abandoned  it  for  that  reason.  Judgment  for  plaintiff.  Defend- 
ant appeals. 

Follett,  Ch.  J.  —  *  *  *  In  case  the  whole  of  an  unfurnished 
dwelling  is  leased  for  a  definite  term,  under  a  single  contract  which 
contains  no  covenant  that  the  premises  are  in  good  repair,  or  that  the 
lessor  will  put  or  keep  them  so,  the  law  does  not  imply  a  covenant  on 
the  part  of  the  lessor  that  the  dwelling  is  without  inherent  defects 
rendering  it  unfit  for  a  residence.  Franklin  N.Brown,  118  N.  Y. 
no.  In  Smith  v.  Marrable,  n  M.  &  W.  5,  a  contrary  rule  was  laid 
down  by  Baron  Parke.  That  case  rose  out  of  a  contract  to  let  a 
furnished  dwelling  for  six  weeks  at  eight  guineas  per  week.  The 
tenant  moved  in,  but  found  the  house  so  infested  with  bugs  that  it 
was  uninhabitable,  and  at  the  end  of  the  first  week,  left,  paying  the 
rent  for  that  week.  In  an  action  brought  to  recover  rent,  it  was 
held  in  the  opinion  delivered  by  Baron  Parke,  concurred  in  by 
Barons  Alderson  and  Gurney:  "  That  if  the  demised  premises  are 
encumbered  with  a  nuisance  of  so  serious  a  nature  that  no  person 
can  reasonably  be  expected  to  live  in  them,  the  tenant  is  at  liberty 
to  throw  them  up.  This  is  not  the  case  of  a  contract  on  the  part  of 
the  landlord  that  the  premises  were  free  from  this  nuisance;  it 
rather  rests  in  an  implied  condition  of  law,  that  he  undertakes  to  let 
them  in  a  habitable  state." 

Chief  Baron  Abinger  concurred  upon  the  ground  that:  "  A  man 
who  lets  a  ready  furnished  house  surely  does  so  under  the  implied 
condition  or  obligation,  call  it  which  you  will,  that  the  house  is  in  a 
fit  state  to  be  inhabited."  The  opinion  of  Baron  Parke  was  rested 
on  the  authority  of  Edwards  v.  Etherington,  Ry.  &  M.  268;  s.  c.  7  D. 
X:  R.  117;  and  Collins  v.  Barrow,  1  M.  &  Rob.  112,  both  of  which 
1  ases,  together  with  Salisbury  v.  Marshal,  4  C.  &  P.  65,  were  expressly 
overruled  by  Hart  v.  Windsor,  12  M.  &  W.  68,  in  which  Parke  said: 

We  are  under  no  necessity  of  deciding  in  the  present  case,  whether 
'hit  of  Smith  v.  Marrable  be  law  or  not.  It  is  distinguishable  from 
tin'  presenl  1  ase  on  the  ground  on  which  it  was  put  by  Lord  Abinger, 
both  on  the  argument  of  the  case  itself,  but  more  fully  in  that  of 
Sutton  x .  Temple^  12  M.  >!v  W.  52,  for  it  was  the  case  of  a  demise  of 
a  ready  furnished  house  for  a  temporary  residence  at  a  watering 
plat  e       It    was    not   a   lease   of   real   estate   merely.      But    that   case 


II.  6  }  ESTATES   FOR   YEARS   OR    "TERMS."  763 

certainly  cannot  be  supported  on   the  ground  on  which  I  rested  my 
judgment." 

Smith  v.  Marrable  was  decided  at  Hilary  Term,  1843,  and  Hart  v. 
Windsor  and  Sutton  v.  Temple,  at  Michaelmas  Term  of  the  same  year. 
The  rule  laid  down  in  Smith  v.  Marrable  by  Abinger,  B.,  as  applica- 
ble to  furnished  houses,  has  been  followed  in  Campbell  v.  Lord  Wen- 
lock,  4  F.  &  F.  716,  and  Wilson  v.  Hatton,  L.  R.  (2  Exch.  Div.)  336, 
but  the  rule  as  stated  by  Parke,  B.,  has  not  been  followed  in  Eng- 
land or  in  this  State.  Franklin  v.  Brown,  118  N.  Y.  no.  The 
defendant  cannot  escape  liability  for  rent  on  the  ground  that  the 
law  implied  a  covenant  that  the  dwelling  was  fit  for   habitation. 

Is  the  evidence  contained  in  the  record  sufficient  to  have  required 
the  trial  court  to  have  held,  as  a  matter  of  law,  that  the  plaintiff 
fraudulently  represented  that  the  dwelling  and  its  fixtures  were  in 
good  condition,  or  that  she  fraudulently  concealed  from  the  plaintiff 
the  fact  that  it  was  in  an  unsanitary  condition? 

In  case  the  owner  of  a  dwelling  knows  that  it  has  secret  defects 
and  conditions  rendering  it  unfit  for  a  residence,  and  fraudulently 
represents  to  one  who  becomes  a  tenant  that  the  defects  and  con- 
ditions do  not  exist,  or  if  he  fraudulently  conceals  their  existence 
from  him,  the  lessee,  if  he  abandons  the  house  for  such  cause,  will 
not  be  liable  for  subsequently  accruing  rent.  Wallace  v.  Lent,  1 
Daly,  48 1 ;  Jackson  v.  Odell,  12  Id.  345;  Rheinlander  v.  Seaman,  13 
Abb.  N.  C.  455;  Cesar  v.  Karutz,  60  N.  Y.  229.  In  the  case  at  bar 
the  defendant  testified,  and  in  this  he  was  not  contradicted,  that 
when  he  first  went  to  the  house  with  the  plaintiff's  agent  he  said: 
"  I  complained  to  him,  the  agent,  at  the  time,  that  I  thought  some 
of  the  plumbing  looked  old.  He  said  that  Mrs.  Daly  was  very  stiff, 
determined  not  to  put  in  any  new,  that  it  was  all  in  good  condition, 
that  they  had  fixed  it  as  they  thought  it  ought  to  be."  This  is  the 
only  representation  which  was  made  by  the  plaintiff,  or  her  agent  in 
respect  to  the  sanitary  condition  of  the  dwelling.  It  was  not  shown 
that  the  plaintiff  or  her  agent  knew  that  the  representations  were 
false,  or  that  the  plumbing  was  out  of  order,  and  fraudulently  con- 
cealed the  fact.  This  takes  the  case  out  of  the  rule  above  referred 
to  in  respect  to  the  owner's  liability  in  case  he  fraudulently  misre- 
presents the  condition  of  the  dwelling,  or  knowing  that  it  is  in  bad 
condition  fraudulently  conceals  the  fact  from  the  person  who 
becomes  the  lessee. 

Is  the  defendant  liable  for  having  stated  that  a  material  fact  existed 
which  did  not  exist,  i.  e.,  that  the  plumbing  was  in  good  order,  uponj; 
the  theory  that  she  was  bound  to  know  whether  or  not  the  statement 
was  true. 


764      ESTATES   AS   TO    QUANTITY    AND    QUALITY.     [PT.  IV.  CH.  II. 

In  case  a  party,  for  the  purposes  of  inducing  another  to  contract 
with  him,  states,  on  his  personal  knowledge,  that  a  material  fact  does 
or  does  not  exist,  without  having  knov/ledge  whether  the  statement 
is  true  or  false,  and  without  having  reasonable  grounds  to  believe 
it  to  be  true,  is  liable  in  fraud,  if  the  statement  is  relied  on  and  is 
subsequently  found  to  be  false,  although  he  had  no  actual  knowledge 
of  the  untruth  of  the  statement.  Bennett  v.  Judson,  21  N.  Y.  238; 
Marsh  wFalker,  40  Id.  562;  Oberlandcr  v.Spiess,  45  Id.  175;  Wake- 
man  v.  Dally,  51  Id.  27;  2  Pom.  Eq.  Juries,  §§  8S7,  888;  Story's  Eq. 
Juris.  §  193. 

It  does  not  appear  that  the  plumbing  had  not  been  fixed  as  stated, 
nor  that  the  statement  that  "  it  was  all  in  good  condition,"  was 
made  without  actual  or  supposed  knowledge  of  its  condition,  nor 
that  it  was  made  in  bad  faith,  and  we  think  the  case  does  not  fall 
within  the  principle  of  the  authorities  last  cited. 

The  defendant  cannot  escape  liability  on  the  ground  that  the  state- 
ment of  the  agent  amounted  to  a  warranty  because  it  is  not  so 
pleaded  in  the  answer. 

Judgment  affirmed. 


7.   Express  Covenants. 
a.   For  renewal  of  a  lease. 
BLACKMORE  v.  BOARDMAN. 

28  Missouri,  420.  —  1859. 

Ejectment  by  Blackmore  to  recover  the  possession  of  certain 
premises.  Plaintiff  had  held  a  lease  of  the  land  for  a  ten  years'  term. 
The  lease  contained  a  covenant  for  renewal  in  the  following 
language:  "And  it  is  hereby  covenanted  and  agreed  by  and 
between  the  said  parties,  that  at  the  end  of  the  term  hereby  demised 
this  lease  shall  be  renewable  for  the  further  term  of  ten  years;  and 
so  on  from  time  to  time  perpetually  at  the  option  of  the  party  of  the 
second  part,  his  executors,  administrators  or  assigns,  he  or  they 
giving  to  the  party  of  the  first  part,  in  every  instance,  a  notice  in 
writing  of  his  or  their  wish  to  renew  the  same  three  months  at  least 
before  the  end  of  the  term.  And  every  renewal  lease  shall  contain 
all  the  covenants,  agreements,  clauses  and  stipulations  herein  con- 
tained."    *     *     * 

1  he  interest  of  plaintiff  was  sold  out  on  a  judgment  against  him 
to  one  Hayne,  under  whom  defendant,  Boardman,  holds.  Just 
before  the  expiration  <>f  the  term  Blackmore  and  Hayne  both  made 


II.   7-]  ESTATES    FOR    YEARS    OR    "TERMS.'*  765 

application  for  a  renewal  of  the  lease  and  the  renewal  was  executed 
to  Blackmore,  who  now  seeks  to  obtain  possession  of  the  land. 
Judgment  for  defendant.      Plaintiff  appeals. 

Richardson,  J.,  delivered  the  opinion  of  the  court.  —  The 
numerous  authorities  cited  by  the  defendant's  counsel  establish  in 
his  favor  the  first  two  propositions  presented  in  the  statement.  As 
the  law  discourages  perpetuities,  it  does  not  favor  covenants  for 
continued  renewals;  but,  when  they  are  clearly  made,  their  binding 
obligation  is  recognized  and  will  be  enforced.  The  covenant  for 
renewal  is  only  an  incident  to  the  lease,  and  as  it  cannot  be  passed 
without  the  principal,  the  conveyance  of  the  principal  by  a  proper 
description  will  necessarily  carry  the  incident.  They  are  insepara- 
ble, and  a  right  of  action  cannot  exist  in  favor  of  a  person  claiming 
the  benefit  of  the  covenant  without  any  right  to  the  possession  of 
the  leasehold;  but  the  covenant,  being  annexed  to  the  estate,  runs 
with  it,  and  cannot  be  retained  by  itself  or  assigned  or  severed  so  as 
to  give  an  independent  cause  of  action.  A  sale  of  the  land  under 
execution  will  pass  to  the  purchaser  all  the  covenants  that  run  with 
it  as  effectually  as  if  he  had  received  a  conveyance  from  the  lessee; 
for  as  the  purchaser,  after  he  acquires  possession,  is  bound  to  pay 
the  rent  and  in  that  way  assumes  the  burdens  of  the  lease,  he  has 
the  right  to  take  advantage  of  the  covenants  that  touch  and  concern 
the  thing  demised,  which  enhance  the  value  of  the  estate.     *     *     * 


PHILLIPS  v.  STEVENS. 
16  Massachusetts,  238.  —  1819. 

Parker,  C.  J.  —  The  point  presented  by  the  pleadings  in  this 
case  seems  to  have  been  considered  to  be  very  clear  by  the  bar;  for 
the  counsel  for  the  defendant,  although  industrious  and  able,  could 
produce  no  authority  to  justify  their  plea.  On  the  other  hand,  the 
authorities  in  favor  of  the  plaintiff  are  numerous,  clear  and  decisive; 
so  that,  whatever  may  be  thought  of  the  merits  of  the  doctrine  they 
maintain,  when  first  established,  there  is  no  escape  from  it  now, 
until  the  Legislature  shall  see  fit  to  alter  the  law,  which  it  is  hardly 
probable  they  will  ever  do;  since  parties  may  always  protect  them- 
selves against  it,  by  due  caution  in  making  their  contracts. 

A  formal  opinion,  in  a  case  so  free  from  doubt,  and  so  well  settled 
in  the  books  would  be  unjustifiable,  were  it  not  for  the  ignorance 
generally  prevailing  in  the  country,  of  the  legal  effect  of  covenants 
in  leases  and  other  instruments,  which  are  often  executed  without 


766      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CII.  II. 

any  particular  inspection  or  knowledge  of  their  contents;  and  thus 
people  are  surprised  into  contracts,  which  neither  party  intended, 
when  the  instrument  was  executed. 

Printed  forms  of  leases  are  most  generally  made  use  of,  and  when 
they  are  not  obtained,  copies  are  made  from  books  of  forms,  or 
from  some  old  instrument  in  print.  In  this  way  covenants  are  trans- 
mitted from  one  generation  to  another,  which  are  never  made  in  Eng- 
land, without  being  very  well  understood;  but,  with  us,  often 
astonish  the  party  to  be  bound,  when  the  occasion  arises,  which 
calls  for  the  performance  of  them. 

Thus  it  was  matter  of  surprise  a  few  years  ago  that  a  lessee  for 
years,  who  had  covenanted  to  pay  rent  during  the  term,  should  be 
held  to  pay  it  after  the  buildings,  which  alone  were  valuable,  were 
destroyed  by  fire.  And  yet  nothing  was  more  clear  than  that  he 
had  stipulated  so  to  do;  as  was  found  in  the  case  of  Fowler  et  al.  v. 
Bolt  et  al.,  referred  to  by  the  counsel  for  the  plaintiff.  So  in  the 
present  case,  although  the  defendant  had,  under  his  hand  and  seal, 
stipulated  that  he  would  keep  in  repair,  support  and  maintain  the 
fences  and  buildings,  with  the  exception  of  natural  decay,  he  was 
undoubtedly  astonished  at  being  called  upon  to  rebuild  a  house,  etc., 
the  use  of  which  he  had  enjoyed  but  for  one  year;  and  yet  he  has, 
in  express  terms,  covenanted  so  to  do.  His  excuse  would  be  that 
he  never  read  the  covenants  in  his  lease,  or  that  he  did  not  under- 
stand the  force  and  effect  of  the  terms.  But  the  law  does  not  pro- 
tect men  from  their  own  carelessness  or  ignorance.  The  former 
they  must  cure;  the  latter  they  must  provide  against  by  asking 
counsel.  Any  lawyer,  in  any  village  of  the  commonwealth,  could 
have  stated  the  hazard,  and  would  have  guarded  against  it,  by  intro- 
ducing such  an  exception,  as  is  now  generally  adopted  in  mercantile 
contracts,  "fire  or  other  casualty  excepted;"  which  would  make 
the  contract  conformable  to  the  intention  of  both  the  parties,  as  the 
words  "  dangers  of  the  sea  and  inevitable  accidents  "  do  in  a  charter 
party  or  bill  of  lading. 

The  case  of  Walton  v.  JVater/iouse,  and  the  cases  cited  by  Sergeant 
Williams  in  his  note  to  that  case,  contain  all  the  law  upon  this  sub- 
ject; the  principle  extracted  from  which  is,  "that  although  a  man 
may  be  excused  from  a  duty  imposed  upon  him  by  the  law,  if  he 
is  disabled  from  performing  it  without  any  fault  of  his  own;  yet 
if  by  his  own  contract,  he  creates  a  duty  or  charge  upon  himself,  he 
is  bound  to  make  it  good,  notwithstanding  any  accident  by  inevitable 
necessity;  because  he  might  have  provided  against  it  by  his  contract." 
Tins  doctrine  is  recognized  and  enforced  in  the  case  of  Bullock  v. 
Dommitt,  and  in  the  case  from  our  own  reports,  before  referred  to. 


III.   i.]  ESTATES   AT   WILL.  jbj 

Men  must  be  more  cautious  in  making  their  contracts,  and  not 
rely  upon  the  hardship  of  their  cases  to  relieve  them,  when  they  are 
brought  into  difficulty.  Such  mistakes  rarely  occur  in  England, 
although  there  is  a  court  of  equity  there  which  may  sometimes  relieve 
in  such  cases.  With  us  there  is  no  such  authority.  The  law  must 
have  its  course,  and  the  citizens  must  take  care  of  themselves  in 
making  their  bargain. 

Plea  adjudged  bad. 


III.  Estates  at  will. 

i.   How  Created. 

(a.)  By  express  agreement  therefor. 

DOE  ex  dem.  BASTOW  v.  COX. 
ii  Adolphus  &  Ellis  N.  S.,  (Eng.,  Q.  B.),  122.  —  1847. 

Ejectment  for  premises  in  Surrey.  On  the  trial,  before  Coltman, 
J.,  at  the  last  Surrey  assizes,  it  appeared  that  the  defendant,  on 
June  18,  1844,  mortgaged  his  interest  in  the  premises  to  the  trus- 
tees of  a  building  society,  now  lessors  of  the  plaintiff,  by  a  deed  con- 
taining this  proviso: 

"  The  said  W.  Cox  doth  hereby  agree  to  become  tenant  to  the 
said  R.  Bastow,"  etc.,  "  their  executors,"  etc.,  "  of  the  premises 
hereby  demised,  henceforth,  at  their  will  and  pleasure,  at  and  after 
the  rate  of  ^25.  4s.  per  annum,  payable  quarterly." 

The  defendant  retained  possession  and  paid  a  year's  rent,  but 
afterwards  made  default.  In  January,  1847,  the  lessors  of  the  plain- 
tiff distrained  for  four  quarters'  rent  then  due;  and  on  May  6, 
1847,  they  gave  him  notice  to  quit  in  a  week,  which  not  being  obeyed, 
the  present  action  was  brought.  The  defendant's  counsel  insisted 
that,  by  the  proviso,  he  was  tenant  from  year  to  year,  and  entitled 
to  six  months'  notice.  Coltman,  J.,  was  of  a  different  opinion,  but 
reserved  leave  to  move  for  a  nonsuit.     Verdict  for  plaintiff. 

Lush  now  moved  that  a  nonsuit  might  be  entered.  The  legal 
operation  of  the  proviso  was  to  create  a  tenancy  from  year  to  year. 
The  courts  have  always  favored  such  a  construction  where  a  yearly 
rent  has  been  reserved,  and  the  lessors  of  the  plaintiff  recognized  a 
yearly  tenancy  by  the  distress  for  four  quarters.  (Erle,  J.  Is  there 
any  instance  in  which  the  words  "  at  will  "  have  been  overlooked? 
Coleridge,  J. :  "  So  long  as  both  parties  shall  please  "  is  very  differ- 
ent.) This,  under  the  circumstances,  was  a  tenancy  at  the  pleasure 
of  both. 


768      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

Lord  Denman,  C.  J.  — The  courts  are  desirous  to  presume  a  ten- 
ancy from  year  to  year,  where  parties  do  not  express  a  different 
intention;  but  here  they  have  expressed  it.  To  hold  otherwise 
would  be  going  beyond  any  decided  case. 

Coleridge,  J.  —  Mr.  Lush  says  the  rule  has  been  to  presume  in 
favor  of  a  yearly  tenancy.  But  it  is  also  a  rule  that  documents  shall 
be  construed  according  to  the  apparent  intention;  which,  in  the 
present  instance,  clearly  is  to  create  a  tenancy  at  will.  Rent,  at 
the  rate  of  ^25.  4s.  per  annum,  is  to  be  paid  quarterly;  but  that  is, 
if  the  will  continues  undetermined;  otherwise  the  reservation  by 
quarters  will  not  take  effect. 

Wightman,  J.  —  I  am  of  the  same  opinion.  The  meaning  of  the 
reservation  is,  that  the  tenant  shall  pay  at  such  and  such  a  rate 
during  the  time  for  which  he  may  occupy. 

Erle,  J.  —  I  am  of  the  same  opinion.  The  intention  is,  that  the 
tenant  shall  hold  at  the  will  of  the  lessors,  and  at  will  only. 

Rule  refused. 


BURNS  v.  BRYANT. 
31  New  York,  453.  —  1865. 


Campbell,  J.  — The  defendant  was  in  possession,  holding  for  no 
particular  time,  paying  no  rent,  making  no  compensation  for  the  use 
of  the  land,  but  under  agreement  to  surrender  the  premises  whenever 
the  landlord  should  require  the  possession.  He  was  clearly  a  tenant 
at  will.  Post  v.  Post,  14  Barb.  253,  and  cases  and  authorities  cited 
there.  As  such  tenant  at  will  the  defendant  was  entitled  to  one 
month's  notice  to  quit  and  surrender  the  premises.  3  R.  S.  5th  ed., 
P-  35>  S§  7»  8,  9.1  The  duration  of  the  tenancy  is  uncertain,  and  the 
landlord  cannot  eject  the  tenant  summarily.  He  has  one  calendar 
month  in  which  to  make  his  arrangements  to  remove.  The  form 
of  the  notice  is  not  prescribed  further  than  it  must  require  the  ten- 
ant to  remove  from  the  premises,  and  it  must  be  in  writing.  The 
9th  section  declares  that  "  at  the  expiration  of  one  month  from  the 
service  of  such  notice  the  landlord  may  re-enter,  etc."  In  this 
the  premises  being  unoccupied  at  the  time,  the  landlord 
re-entered  by  the  plaintiff  before  the  expiration  of  the  month.  But 
the  trespasses  were  not  committed  till  May  and  June  following,  two 
or  three  months  after  the  month  had  expired.  The  fact  that  the 
notice  was  served  on  the  24th  of  January,  requiring  the  tenant  to 
remove  on  the  20th  February,  could  make  no  difference,  as  there  is 

1  N.  Y.  R.  I'.  L.  §  198.  -Ed. 


III.   p.]  ESTATES   AT   WILL.  769 

no  claim  for  trespasses  committed  prior  to  the  24th  February.  All 
the  defendant  was  entitled  to  was  one  month's  notice  to  quit.  It 
could  make  no  difference  that  a  specific  day  was  fixed  in  the  notice. 
The  statute  would  still  give  him  the  month  in  which  to  make  his 
preparations  to  remove.  This  month  had  long  expired  when  the 
defendant  virtually  undertook  to  re-enter  himself,  as  against  his 
landlord,  claiming  that  his  tenancy  had  not  terminated. 

It  seems  to  me  very  clear  that  there  was  no  foundation  for  such  a 
claim  on  the  part  of  the  defendant. 

This  judgment  should  be  affirmed. 


b.   By  implication  of  law. 

(1.)  Tenant  Enters  under  Void  Parol  Lease  or  Parol  Contract  for  a  Sale. 

TALAMO  v.  SPITZMILLER. 

no  New  York,  37.  —  1890. 

[Reported  herein  at  p.  741.] 


Rapallo,  J.,  in  HARRIS  v.  FRINK. 
49  New  York,  24  (32).  —  1872. 

I  have,  thus  far,  examined  the  case  without  reference  to  the 
position  of  the  plaintiff's  counsel,  that  the  plaintiff,  having  entered 
upon  the  land  with  the  license  and  permission  of  the  owner  to  occupy 
and  work  it,  became  a  tenant  at  will,  and,  as  such,  entitled  to  the 
emblements  (Co.  Litt.  55  b.),  notwithstanding  that  he  entered  under 
contract  of  purchase. 

The  simplest  form  of  a  tenancy  at  will  was  where  one  man  let  to 
another  to  hold  at  the  will  of  the  lessor.  Co.  Litt.  §  68.  But  a 
tenancy  at  will  may  be  created  otherwise  than  by  express  contract; 
it  may  arise  by  implication.  Craft  on  Real  Prop.  §  1544.  And  an 
obligation  to  pay  rent  is  not  a  necessary  incident  of  such  a  tenancy. 
Where  one  enters  by  permission  of  the  owner  for  an  indefinite  period, 
and  without  the  reservation  of  any  rent,  he  is,  by  implication  of  law, 
a"  tenant  at  will.  Doe  v.  Baker,  4  Dev.  N.  C.  220.  If  he  be  placed 
upon  the  land  without  any  terms  prescribed  or  rent  reserved,  and  as 
a  mere  occupier,  he  is  strictly  a  tenant  at  will.  Jackson  v.  Bradt,  2 
Caines'.  R.  174;  4  K.  C.  114-125,  nth  ed. ;  Post  v.  Post,  14  Barb. 
253;  Burns  v.  Bryant,  31  N.  Y.  453.     Where  a  householder  permitted 

LAW  OF  PROP.  IN  LAND  —  49 


770      ESTATES   AS   TO   QUANTITY   AND   QUALITY.     [PT.  IV.   CH.  II. 

another  to  occupy,  rent  free,  the  occupant  was  held  to  be  a  tenant 
at  will.  Rex  v.  Collett,  Russ  &  Ry.  498;  Jackson  v.  Bryan,  1  Johns. 
322,  and  would  be  entitled  to  emblements.  Doe  v.  Price,  9  Bing. 
357,  358.  A  parol  gift  of  land  creates  a  tenancy  at  will.  Jackson 
v.  Rodgcrs,  1  Johns.  Cas.  ^t,;  s.  c.  2  Caine's  Cases,  314.  And  there 
is  much  authority  in  favor  of  the  position,  that  one  who  is  let  into 
possession  under  a  contract  to  purchase  is  strictly  a  tenant  at  will. 
Washburn  on  Real  Property,  511,  513,  515,  3d  ed. ;  Howard  v.  Shaw, 
8  M.  &  W.  118-122;    Waring  v.  King,  Id.  571;   Doe   v.  Miller,  5  Car. 

6  P.  595;  Doe  v.  Chamberlaine,  5  M.  &  W.  14;  Right  v.  Beard,  13 
East,  210;  Gould  v.  Thompson,  4  Met.  224;  12  Mass.  325.  And  he 
has  the  right  of  ingress  and  egress  to  remove  his  effects.  Love  v. 
Edmonston,  1  Iredell,  N.  C.  152;  Jones  v.  Jones,  2  Rich.  L.  R.  S.  C. 
542;  Doe  v.  Baker,  4  Dev.  220;  Manchester  v.  Doddridge,  3  Iredell, 
360;  Lozury  v.  Tew,  3  Barb.  Ch.  414;  5  Wend.  29.  He  is  not  liable 
for  rent,  because  a  promise  to  pay  rent  cannot  be  implied  in  such  a 
case,  the  tenant  having  entered  under  a  different  contract.  Smith 
v.  Stewart,  6  Johns.  46;  Bancroft  v.  Wardwell,  13  Id.  4S9;  Winter- 
bottom  v.  Ingham,  7  Q.  B.  611.  But,  nevertheless,  he  is  a  tenant  at 
will.  Howard  v.  Shaw,  8  M.  &  W.  122.  And  he  is  not  entitled  to 
notice  to  quit  if  he  makes  default  in  his  contract.     Jackson  v.  Miller, 

7  Cow.  747.  A  tenant  strictly  at  will  was  not,  prior  to  the  Revised 
Statutes,  entitled  to  notice  to  quit.  Jackson  v.  Bradt,  2  Caines'  R. 
169;  Doe  v.  Baker,  4  Dev.  220;  Jackson  v.  Bryan,  1  Johns.  322;  13 
Maine,  214;  2  Esp.  717;  Crabb  on  Real  Property,  §  1559;  Post  v- 
Post,  14  Barb.  253.  From  considerations  of  equity,  tenancies  at  will 
were,  under  certain  circumstances,  treated  by  the  courts  as  tenancies 
from  year  to  year  merely  for  the  sake  of  notice  to  quit.  4  Cow. 
350.  This  is  called  by  Chancellor  Kent  a  species  of  judicial  legisla- 
tion. 4  K  C.  127,  nth  ed. ;  Jackson  v.  Bryan,  1  Johns.  322.  But 
this  indulgence  was  not  extended  to  a  tenancy  at  will  created  by 
entry  unl-  a  parol  contract  of  purchase.  7  Cowen,  751,  752; 
Suffern  v  Townsend,  9  Johns.  35;  9  Id.  331.  In  England,  a  tenant 
at  w;il  by  e  itry  under  a  contract  of  purchase  is  not  entitled  to 
noti  1  q  lit  at  a  future  time;  but,  unless  he  does  some  wrongful 
ac  1  1  tate  the  tenancy,  he  cannot  be  treated  as  a  trespasser  or 
sued  11  1  j  tment  without  a  demand  of  possession.  5  Carr.  &  P. 
595;  1  j  East  210;  5  M.  &  W.  14.  If  he  makes  default  in  his  con- 
tra- t  of  purchase  or  commits  waste,  or  in  any  other  manner  termin- 
ates  thi  te  1  incy  by  his  own  wrongful  act,  he  becomes  a  trespasser, 
and  m  iy  I'  --uecl  as  such  or  in  ejectment,  and  he  cannot  dispute  the 
title  "f  ti>  Lrty  u  ider  whom  he  entered;  Cooler  v.  Stower,  9  Johns. 
331;   Doolittle  v    Eddy,  7  Barb.  74;   1  Wend.  418;  5  Id.  30;  6  Johns. 


III.  2.]  ESTATES   AT   WILL.  77 1 

34,   49;    and   he  would,   no  doubt,  forfeit  his  right  to  emblements 
under  those  circumstances.     Co.  Litt.  55  b. 

Expressions  are  to  be  found  in  some  of  the  authorities  cited,  to 
the  effect  that  one  entering  under  a  contract  of  purchase  does  not 
stand  in  the  relation  of  tenant  to  the  vendor.  6  Johns  46;  13  Id. 
489.  These  expressions  are  used,  however,  in  reference  to  the  ques- 
tion whether  an  undertaking  to  pay  rent  can  be  implied.  But  where 
a  purchaser  of  a  farm  enters  upon  it  under  an  express  agreement  of 
the  vendor  that  he  may  occupy  and  work  it  until  the  vendor  is  pre- 
pared to  convey,  and  the  agreement  to  sell  is  merely  by  parol,  and 
the  question  arises  with  reference  to  the  rights  of  sucli  an  occupant, 
in  case  of  a  refusal  of  the  vendor  to  perform,  and  a  termination  by 
him  of  the  occupancy,  without  any  default  on  the  part  of  the  occu- 
pant, there  is  strong  reason  for  according  to  such  occupant  the  rights 
of  a  tenant  at  will.  The  permission  to  occupy  unaccompanied  by 
any  contract  of  sale,  would  clearly  create  a  tenancy  at  will.  31 
N.  Y.  453;  2  Caine's  R.  174,  and  cases  supra.  The  effect  of  the 
invalidity  of  the  contract  of  sale  is  to  reduce  the  right  of  the  vendee 
to  that  of  a  mere  licensee,  and  to  enable  the  vendor  to  revoke  the 
license  at  his  pleasure.  When  he  exercises  that  right  there  is  no 
injustice  in  placing  him  in  the  same  position  as  if  the  contract  of 
sale  which  he  repudiates  had  not  been  made.  The  holding,  from 
the  beginning  was,  in  fact,  at  his  will;  and  the  principles  upon  which 
emblements  are  allowed  to  a  tenant  at  will  would  seem  applicable  to 
such  a  case.     Comyns'  Dig.,  title  Bisns.  G.  2;  Co.  Litt.  55  a.,  55  b. 


2.   Termination  of  Tenancy  at  Will. 
a.  By  express  determination  of  the  will.     Notice. 

DOE  ex  dem.  BASTOW  v.  COX. 

11  Adolphus  &  Ellis  N.  S.,  (Eng.  Q.  B.),  122.  —  1840. 

[Reported  herein  at  p.  767.] 


BURNS  v.  BRVANT. 
31  New  York,  453.  —  1865. 
[Reported  herein  at  p.  768.] 


7/2      ESTATES   AS   TO   QUANTITY    AND    QUALITY.     [PT.  IV.  CH.  II. 

b.   By  implied  determination  of  the  will. 

(i.)  Transfer  of  Interest  of  Either  Party. 

Allen,  J.,  in  RECKHOW  v.  SCHANCK. 

43  New  York,  448.  —  1871. 

The  defendants  now  claim  that  their  lessors  were  tenants  at  will, 
or  by  sufferance  of  the  plaintiff,  and  that  they,  by  the  act  and  assent 
of  such  tenants  having  acquired  the  possession  of  the  premises,  have 
thereby  become  and  are  the  tenants  of  the  plaintiff,  holding  by  the 
same  tenure  and  entitled  to  the  same  notice  to  quit  as  those  to 
whose  possession  they  have  succeeded.  Assuming  that  the  case 
establishes  the  relation  of  landlord  and  tenant  between  the  plaintiff 
and  Reckhow  &  Hudson,  under  whom  the  defendants  claim  to  have 
acquired  the  possession  and  right  of  possession,  which  is  by  no 
means  clear,  the  result  claimed  by  the  defendants  by  no  means  fol- 
lows. A  tenant  at  will  is  disqualified  from  granting  a  lease  available 
against  anyone  but  himself;  for  the  demise  would  amount  to  a  ter- 
mination of  the  will,  and  it  would  be  optional  with  the  landlord  to 
regard  the  entry  of  the  lessee  of  the  tenant  at  will  as  a  disseisin. 
1  Piatt  on  Leases,  104.  The  same  rule  holds  as  to  a  tenant  by 
sufferance.  Id.  122.  The  yielding  of  the  possession  of  the  premises 
terminates  the  original  tenancy,  and  a  new  tenancy  at  the  will  of  the 
owner  cannot  be  created  except  by  his  or  her  assent.  Every  lease 
at  will  is  at  the  will  of  both  parties,  and  a  tenant  at  will  has  no  certain 
and  indefeasible  estate;  nothing  that  can  be  granted  by  him  to  a 
third  person.  If  a  tenant  at  will  assigns  over  his  estate  to  another 
who  enters  on  the  land  he  is  a  disseisor,  and  the  landlord  may  have 
an  action  of  trespass  against  him.  1  Greenleaf  Cruise,  278; 
Campbell  v.  Proctor^  6  Greenleaf  R.  12.  A  tenancy  by  sufferance, 
existing  only  by  the  laches  of  the  owner,  cannot  give  the  occupant 
an  estate  or  interest  capable  of  transmission  to  another.  At  com- 
mon law,  a  tenant  at  sufferance  is  not  entitled  to  notice  to  quit. 
There  is  no  evidence  that  the  plaintiff  assented  to  the  occupancy  of 
the  defendants,  or  that  she  had  any  knowledge  of  such  occupancy 
prior  to  the  commencement  of  the  action.  It  is  undoubtedly  true 
that  when  the  relation  of  landlord  and  tenant  is  established,  it 
attaches  to  all  who  may  succeed  to  the  possession  through  or  under 
the  tenant;  but  this  cannot  apply  to  tenancies  that  are  terminated 
by  the  very  act  of  transmission  of  the  possession.  The  defendants 
have  not  shown  any  permission  from  the  plaintiff  to  enter  upon  the 
premises,  and  they  were,  therefore,  trespassers  and  not  entitled  to 
notice  to  quit, 


IV.   i.]  ESTATES    FROM    YEAR   TO    YEAR.  JJl 

IV.  Estates  from  year  to  year. 

i.    How  They  Arise. 
a.   By  express  agreement. 

PUGSLEY  v.  AIKIN. 

ii  New  York,  494.  —  1854. 

Gardiner,  Ch.  J.  —  I  do  not  perceive  that  distinct  causes  of 
action  are  united  in  this  complaint,  as  the  defendants  have  alleged, 
and  the  Supreme  Court  have  determined.  The  tenancy  created  by 
the  original  contract  between  the  defendant's  testator  and  those 
represented  by  the  plaintiff  was  to  continue  until  the  parties  to  it, 
one  or  both,  elected  to  terminate  the  demise,  by  giving  the  half 
year's  notice  prescribed  by  law.1  If,  after  the  close  of  the  first  year, 
the  lessee  rightfully  remained  in  possession,  it  was  not  by  virtue  of 
a  new  demise,  but  by  force  of  the  old  one.  That  he  continued, 
under  a  contract  for  the  possession  of  some  kind,  must  be  and  is 
admitted;  otherwise,  the  occupation  would  be  tortious,  and  the  ten- 
ant holding  over  could  have  been  ousted  at  any  time  at  the  election 
of  the  landlord.  No  such  right  upon  the  part  of  the  lessor  is  pre- 
tended. The  supposition  of  a  new  agreement,  made  at  the  com- 
mencement of  the  second  year,  for  a  continuance  of  the  tenancy,  is 
not  only  untrue  in  fact,  but  in  this  case  conflicts  with  the  allegations 
of  the  complaint  which  are  admitted  by  the  demurrer.  The  plaintiff 
there  avers  "  that  the  testator  hired  and  rented  the  farm  for  the 
term  of  one  year,  and  an  indefinite  period  thereafter."  There  was, 
therefore,  but  one  contract,  and  we  are  not  at  liberty  to  suppose 
another  For  although  the  law  will  sometimes  tolerate  a  fiction,  it 
is  always  in  aid  of,  and  never  to  the  prejudice  of  the  right  of  a  party. 
In  Legg  v.  Strudivick,  2  Salk.  414,  it  was  adjudged  in  reference  to  a 
lease  of  this  description,  "  that  it  was  a  lease  for  a  year  certain; 
and  that  every  year  after  it  was  a  springing  interest  arising  upon 
the  first  contract,  and  parcel  of  it;  and  that  the  lessor  might 
avow  as  for  rent  due  upon  an  entire  lease,  and  not  for  a  several 
rent,  due  upon  several  leases,  accounting  each  year  a  new  lease." 
In  a  note  in  Bacon's  Abridgement,  (Lease,  L.  p.  626,)  it  is  said, 
"  that  notwithstanding  the  puzzle  in  the  books  respecting  these  run- 
ning leases,  the  law  is  now  considered  settled  agreeably  to  the  case 
of  Legg  v.  Strudwick.  They  are  leases  for  one,  two  and  more  years 
certain,  according  to  the  form  of  the  lease,  depending  for  their 
further  continuance  upon  the  will  of  the  parties.     And  that  such  will 

'The  lease  was  "  for  the  te;m  of  one  year  and  an  indefinite  period  there- 
after," at  an  annual  rent.  —  Ed. 


774      ESTATES   AS   TO    QUANTITY    AND    QUALITY.     [PT.  IV.  CII.  II. 

be  their  will,  the  law  presumes,  unless  the  contrary  be  evidenced  by 
a  regular  half  year's  notice,  that  the  tenant  continuing  in  possession 
is  not  a  tenant  at  will,  but  a  tenant  for  years." 

The  doctrine  of  these  authorities,  when  analyzed,  amounts  to  this: 
that  when  a  tenancy  from  year  to  year  is  created  by  the  agreement 
of  the  parties,  it  continues  until  terminated  by  a  legal  notice.  The 
estate  does  not  depend  upon  a  continuance  of  possession;  for  the 
tenant  cannot  put  an  end  to  the  tenancy,  or  his  liability  for  rent,  by 
withdrawing  from  the  occupancy  of  the  premises.  The  notice  is  a 
condition  of  the  contract,  in  the  language  of  these  authorities,  arising 
out  of  it,  which  must  be  complied  with,  in  order  to  absolve  him  from 
further  responsibility. 

If  this  view  is  correct,  there  is  no  misjoinder  of  distinct  causes  of 
action  in  the  case  before  us.  The  testator  had  manifested  his  elec- 
tion, that  the  lease  should  not  terminate  during  the  year  succeeding 
his  death;  and  was,  as  we  have  seen,  liable  for  the  rent  of  the  year 
1842.  After  his  decease,  in  April,  his  executors,  as  such,  entered 
into  possession.  They  were  under  no  obligation  to  put  an  end  to 
an  interest  which  the  decedent  had  deemed  beneficial,  and  which 
they  as  his  representatives  thought  advantageous  to  his  estate. 
They  would  have  violated  a  plain  duty,  as  trustees  of  the  property, 
by  relinquishing  by  their  own  act  a  valuable  lease,  without  any 
equivalent.  They  therefore  continued,  as  the  representatives  of  the 
testator,  to  occupy  the  lands  during  the  period  in  which  the  rent 
accrued  for  which  this  action  is  brought.  This  is  distinctly  averred 
in  the  complaint.  And  having  as  trustees  and  executors  rightfully 
received  the  profits  of  the  demised  premises,  they  are  liable  in  that 
character  to  the  payment  of  the  rent. 

The  second  cause  of  demurrer,  viz.,  that  the  complaint  did  not 
state  a  cause  of  action,  is  consequently  untenable.  The  current 
year,  according  to  the  terms  of  the  lease  stated  in  the  complaint, 
would  expire  on  the  first  of  April.  To  terminate  the  tenancy  the 
lessee  must  have  given,  six  months  previously,  notice  of  his  intention 
to  do  so,  or  the  lease  would  continue  another  year.  The  testator 
died  in  the  month  of  April,  1841,  without  having  given  any  notice 
whatever,  and,  of  course,  his  liability  for  the  rent  of  that  year  had 
its  inception,  in  any  view  of  the  case,  in  the  lifetime  of  the  lessee, 
am!  when  that  time  expired,  became  a  debt  properly  chargeable 
against  his  estate.  The  Supreme  Court  accordingly  placed  their 
(1  ision  upon  the  first  cause  of  demurrer,  which  is  obviously  the 
only  one  deserving  consideration. 

Tli"  judgmenl  of  the  Supreme  Court  at  General  Term  must  be 
reversed,  .0111  that  of  the  Special  Term  affirmed. 


IV.   i.J  ESTATES    FROM    YEAR   TO    YEAR.  775 

b.    By  implication  of  law. 
REEDER  v.  SAYRE. 
70  New  York,  180.  —  1877. 

Folger,  J.  —  *  *  *  The  plaintiffs  went  into  occupation,  in  pur- 
suance of  what  passed,  orally,  between  them  and  Tuthill.  The  oral 
agreement  was  void,  by  the  statute  of  frauds,  as  to  the  term  attempted 
to  be  created,  or  any  interest  in  lands  to  be  derived  from  it.  2  R.  S. 
p  134,  §  6.  The  right  to  take  off  a  crop  of  wheat,  after  the  two  years 
had  expired,  though  sowed  before,  was  an  interest  in  lands.  Earl 
Falmouth  v.  Thomas,  1  Cromp.  &  Mees.  89;  Stewart  v.  Doughty,  9  J. 
R.  108.  So  that  the  whole  agreement  was  void,  and  might  have 
been  legally  repudiated,  as  soon  as  it  was  made,  by  either  party  to 
it.  But  occupation  of  the  lands  was  taken  with  the  consent  of  the 
owner  and  the  rent  was  paid  to  him,  in  pursuance  of  and  under  the 
void  agreement.  In  such  case  the  occupation  inures,  as  a  tenancy 
from  year  to  year.1  Clayton  v.  Blakey,  8  T.  R.  3;  Thunder  v.  Belcher, 
3  East,  449;  Lounsbery  v.  Snyder,  31  N.  Y.  514;  Schuyler  v.  Leggett, 
2  Cow.  660;    The  People  v.  Rickert,  8  Id.  226. 

The  agreement,  though  by  parol,  and  void  as  to  the  term  and  the 
interest  in  lands  sought  to  be  created,  regulates  the  relations  of  the 
parties  to  it  in  other  respects  upon  which  the  tenancy  exists,  and 
may  be  resorted  to  to  determine  their  rights  and  duties,  in  all  things 
consistent  with,  and  not  inapplicable  to  a  yearly  tenancy,  such  as 
the  amount  of  rent  to  be  paid,  the  time  of  year  when  the  tenant  could 
be  compelled  by  the  landlord  to  quit,  and  any  covenants  adapted  to 
a  letting  for  a  year.  Doe  v.  Bell,  8  T.  R.  579;  8  Cow.  supra;  Arden 
v.  Sullivan,  14  Q.  B.  (Ad.  &  El.  N.  S.)  832;  Doe  x.Amey,  12  Ad.  & 
El.  476;  Berry  v.  Lindsley,  3  M.  &  F.  498;  Edwards  v.  demons,  24 
Wend.  480. 

We  are  thus  enabled  to  ascertain  the  relations  to  each  other,  of 
the  Reeders  and  Tuthill,  when  Sayre,  the  defendant,  came  in,  as  the 
vendee  of  the  premises  by  a  valid  contract  of  sale  and  pur- 
chase.    *     *     * 

They  were  entitled  to  remain  and  use  through  the  year  1873  and 
up  to  the  1st  of  April,  1874,  unless  the  occupation  was  sooner 
determined  by  mutual  assent  of  them  and  Tuthill,  or  his  successors 
in  interest,  or  by  a  sufficient  notice  to  quit  from  some  one  having 
legal  right  to  give  it. 

It  is  said  that  so  to  construe  is  to  make  the  lease  interminable. 
It  is  interminable,  save  as  it  may  be  terminable,  by  the  notice  to 

1  See  Talamo  v.  Spitzmiller,  p.  741,  supra.  —  Ed. 


J76      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.  IV.  CII.  II. 

quit  of  the  lessor  or  the  lessee ;  or  by  an  actual  or  implied  surrender. 
"  In  truth,  he  is  a  tenant  from  year  to  year,  as  long  as  both  parties 
please,"  says  Lord  Kenyon  in  Rex  v.  Inhabitants  of  Stone,  6  T.  R. 
295;  Doc  v.  Wood,  14  M.  &  W.  682. 

A  sufficient  notice  to  quit,  given  in  187 1,  would  have  terminated 
their  right  of  occupation   on  the  first  day  of  April,  1872.     People  v. 
Rickert,   supra.      A   sufficient   notice   to   quit   in    1872,    would    have 
terminated  their  right  of  occupation  on  the  first  day  of  April,  1873; 
and  either  of  such   notices,  given  before  seeding,  would  have  pre- 
vented the  right  to  sow  in  1873  for  a  crop  of  wheat  to  be  gathered 
in  1874.      For,  in  case  of  a  tenancy  from  year  to  year,  growing  out 
I  of  a  parol  lease  void  by  the  statute  of  frauds,  the  lessor  has  a  right, 
1  in  any  year  of  the  occupancy  under  it,  to  give  a  sufficient  notice  to 
.  quit  and  thus  to  terminate  the  tenancy  on  the  last  day  of  the  rental 
year.     A  formal  notice  was  necessary  to  terminate  their  holding,  or 
1  to  cut  off  the  rights  accrued  and  accruing  to  them  from  their  occu- 
pation as  tenants  from  year  to  year,  under  the  void  lease,  except  as 
hereinafter  noticed.     Bradley  v.  Covel,  4  Cow.  349;  Jackson,  ex.  dem. 
v.  Salmon,  4  Wend.  327.     The  notice  to  quit  must  have  been  for  the 
end  of  some  year  of  the  holding.     4  Cow.  supra.     In  this  case,  for 
the  first  day  of  April,  1873. 

So  that  we  have  before  us  in  May,  1872,  the  Reeders,  the  plaintiffs 
as  tenants,  and  Tuthill,  the  owner,  as  landlord;  the  Reeders,  with 
the  right  to  remain  and  use,  through  the  year  1873  and  up  to  April 
1st,  1874,  unless,  in  due  time,  a  due  notice  to  quit,  is  given  to  them 
by  their  lessor,  or  by  some  one  succeeding  to  his  rights.     *     *     * 

But  the  question  then  is,  was  it  necessary  that  the  Reeders  should 
have  service  of  notice  to  quit,  ending  when  the  term  would  have 
ended  by  the  parol  agreement  ?  In  England  it  has  been  held,  that  a 
tenant  from  year  to  year,  under  an  agreement  for  a  lease  for  seven 
years,  which  lease  was  never  executed,  was  not  entitled  to  notice  to 
quit  at  the  end  of  the  seven  years,  as  the  contract  itself  gave  him 
sufficient  notice.  Doe  ex  dem  Tilt.  v.  Stratton,  4  Bing.  446;  Tress  v. 
Savage,  4  Ell.  cSt  Bl.  36. 

It  has  been  held  in  this  State,  that  under  a  valid  lease,  which  fixed 
the  length  and  ending  of  the  term,  no  notice  to  quit  was  necessary. 
Allen  v.  Jaquish,  21  Wend.  628.  I  know  of  no  decision  expressly 
holding  that  the  same  rule  does  not  apply  to  a  holding  from  year  to 
year,  begun  under  a  void  lease,  which  named  a  time  for  the  termina- 
tion  of  the  tenancy;  but  see  4  Wend.,  supra. 

I'.it  whal  was  the  time  for  tin;  termination  of  the  tenancy  in  this 

Was  it    the  first  day  of  April,   [873,  or  was  it  after  the  crop 

of  whe  it,  sowed   in    1872   was  harvested?     We  think  that  it  was  not 


IV.  3-]  ESTATES  FROM  VEAR  TO  YEAR.  J"J7 

until  the  latter  event  that  the  whole  interest  of  the  Reeders  in  the 
lands  terminated.  They  knew  that  their  right  to  remain  on  the  farm 
ceased,  so  far  as  the  oral  agreement  gave  right,  on  the  first  day  of 
April,  1873.  A  surrender  of  the  premises  generally  at  that  time,  of 
itself  made  no  difference  in  their  right  to  an  off-going  crop.  9  J.  R. 
supra.  They  also  knew  that  the  same  agreement  gave  right  to  sow 
and  reap  a  crop  of  wheat  thereafter,  and  that  this  was  a  prolongation 
of  their  term.  Beavan  v.  Delahay,  1  Hy.  Bl.  5;  Boraston  v.  Green, 
16  East,  71.  Under  the  decisions  above  cited,  they  are  held  to  no 
more  than  to  take  note  of  the  time  of  the  termination  of  their  interest 
in  the  lands,  and  to  govern  themselves  accordingly.  Their  interest 
in  the  lands,  under  an  operative  and  valid  lease,  would  not  have 
ceased  entirely  until  they  had  harvested  and  threshed  the  crop  of 
wheat  sowed  in  1872.  So  that  we  are  brought  to  the  conclusion  that 
they  had  a  right  in  the  lands  after  the  first  day  of  April,  1873.  which, 
while  it  could  have  been  terminated  by  a  sufficient  notice  to  quit, 
given  by  one  legally  entitled  so  to  do,  could  not  be  terminated  in 
any  other  way.  As  Tuthill,  the  owner  of  the  legal  title,  did  not  give 
that  notice,  the  tenancy  was  not  terminated.     *     *      * 

The  judgment  appealed  from  should  be  affirmed. 


2.  Alienability,  etc. 

PUGSLEY  v.  AIKIN. 
11  New  York,  494.  —  1854. 
[Reported  herein  at  p.  773.] 


3.  Termination.     Notice. 

STEFFENS  v  EARLE. 
40  New  Jersey  Law,  128.  —  1878. 
Summary    proceeding  to  recover   real    property  from  a  tenant. 
Judgment  for  the  landlord.     The  tenant  appeals. 

Reed,  J.  —  *  *  *  What,  then,  in  the  first  place,  is  the  char- 
acter of  this  tenancy,  in  respect  to  time? 

To  support  the  judgment  in  this  case,  it  must  be  a  monthly  letting. 
The  defendant  insists  that  the  words  employed  by  the  claimant,  in 
the  affidavit,  import  a  tenancy  at  will,  or  from  year  to  year,  and 
therefore  a  three  months'  notice  was  requisite  to  determine  the 
tenure.  The  question  is  important  from  the  fact  that,  acting  upon 
the  supposition  that  the  tenancy  was  monthly,  only  a  month's  notice 


778      ESTATES   AS   TO  QUANTITY    AND    QUALITY.     [PT.  IV.  CII.   II. 

was  attempted  by  the  claimant.  Indeed,  the  distinction  between 
tenancies  from  year  to  year  and  tenancies  for  a  less  period,  in  all  the 
cases,  seems  to  be  important  only  in  relation  to  the  notice  by  which 
the  determination  of  either  kind  can  be  effected.  Unless  it  can  be 
shown  that  monthly  or  weekly  tenancies  are  unknown,  I  do  not  see 
how  it  is  possible  to  hold  the  tenancy  described  in  the  affidavit  to  be 
other  than  a  monthly  tenancy.  That  such  tenancies  have  an  exist- 
ence, the  cases  hereafter  cited  will  establish,  and  to  hold  that  the 
contract  here  shown  is  a  monthly  letting  is  only  giving  to  the  words 
of  the  affidavit  their  literal  force.  Further  argument  would  be 
wasted  upon  this  point. 

If  a  monthly  tenancy,  is  there  a  sufficient  notice  shown? 

The  rule  relative  to  notices  seems  to  be  as  follows:  Where  there 
is  a  lease  for  a  certain  period,  the  term  determines  without  notice. 
Cobb  v.  Stokes,  8  East,  358;  Right  v.  Darby,  1  Term  R.  159;  Decker 
v.  Adams,  7  Halst.  99.  In  uncertain  tenancies,  reasonable  notice 
was  necessary,  which  reasonable  notice  had,  from  the  time  of  Henry 
VIII.,  according  to  Lord  Ellenborough,  been  six  months.  Doe  d. 
Strickland  v.  Spence,  6  East,  120. 

This  rule  was  applied  to  all  uncertain  tenancies  in  this  State, 
whether  rent  was  or  was  not  reserved.  Den  v.  Drake,  2  Green,  523. 
The  time  was  changed  to  three  months  by  act  of  1840,  Pamph.  L., 
104,  now,  with  a  little  change  in  the  text,  the  twenty-seventh  section 
of  the  landlord  and  tenant  act  in  the  revision.      Rev.,  p.  575. 

In  cases  of  tenancies  for  periods  running  less  than  a  year,  the  rule 
enunciated  by  the  text-writers  is,  that  the  notice  must  be- regulated 
by  the  letting,  and  must  be  equivalent  to  a  period.  Taylor  on  Land. 
and  Ten.  §  478;  Archb.  on  Land,  and  Ten.  87.  How  the  rule  arose 
is  uncertain.  It  certainly  did  not  have  its  origin  in  any  resolutions 
of  the  courts.  Indeed,  Baron  Parke,  in  Huffell  v.  Armistead,  7  C.  & 
P.  56,  said  that  he  knew  of  no  decision  holding  a  week's  or  month's 
notice  was  necessary  to  determine  a  weekly  or  monthly  tenancy. 
See,  also,  the  remarks  of  the  judges,  to  the  same  import,  in  Towne 
v.  Campbell,  3  C.  B.  921. 

It  seems,  however,  to  have  clearly  shaped  itself  into  a  custom. 
The  habit  of  giving  and  requiring  reasonable  notice,  in  cases  of  ten- 
am  ies,  not  for  a  single  term,  but  for  recurring  periods,  which  rea- 
sonable notice,  when  the  periods  were  from  year  to  year,  was, 
according  to  Lord  Ellenborough,  very  early  held  to  be  six  months, 
was,  probably  by  a  custom  equally  as  old,  in  tenancies  for  less 
periods,  established  as  now  stated  by  the  books. 

By  strict  relativeness,  the  rule  of  a  half  year's  notice  in  tenancies 
from  vi  ar  to  year,  would  only  require  a  half  month's  or  a  half  week's 


IV.   3-]  ESTATES    FROM    YEAR   TO    YEAR.  779 

notice  in  cases  of  monthly  or  weekly  tenancies.  The  briefness  of 
the  latter,  and  the  length  of  the  former  kind  of  tenancies,  was  the 
probable  reason  why  the  rule  was  not  uniform.  Whatever  the 
reason  of  the  rule,  it  seems  to  have  been  well  grounded  in  the  general 
understanding  of  the  English  people.  The  cases  cited  by  the  books 
of  authority  in  support  of  the  rule  already  stated  are  merely  recog- 
nitions of  what  was  obviously  a  custom,  and,  as  such,  the  cases  would 
seem  to  have  as  much  weight  and  authority  as  if  they  had  expressly 
ruled  the  point. 

The  first  is  the  case  of  Doe  ex  dem.  Parry  v.  Hazell,  1  Esp.  94.  It 
was  a  case  of  ejectment,  tried  before  Chief  Justice  Kenyon  in  1794. 
The  full  report  of  the  case  is  as  follows:  The  defendant  had  taken 
the  house  by  the  month,  and  a  month's  notice  to  quit  had  been 
given.  It  was  agreed  that  the  notice  had  reference,  in  all  cases,  to 
the  letting,  and  that  a  month's  notice  was  sufficient  to  entitle  the 
plaintiff  to  recover. 

In  Peacock  v.  Raffun,  6  Esp.  4,  tried  before  Lord  Ellenborough 
in  1808,  the  court  remarked  that  a  week's  notice  to  quit  was  certainly 
sufficient  where  the  holding  was  weekly. 

In  Doe  d.  Campbell  v.  Scott,  6  Bing.  362,  the  same  rule  was,  in 
1830,  recognized  by  the  Court  of  Common  Pleas.  The  rule  was 
incorporated  in  the  text  of  the  books  of  authority  upon  this  subject 
as  the  law,  and  may  be  considered  as  settled  both  in  England  and  in 
this  country,  excepting  where  the  matter  of  notice  has  been  the  sub- 
ject of  statutory  regulation.  Prifidle  v.  Anderson,  19  Wend.  391;  s. 
c.  23  Wend.  616;  Seem  v.  McLees,  24  III.  192;  Walker  v.  Sharpe,  14 
Allen,  43. 

The  common-law  rule  I  take  to  be  undoubted,  that  notice  is 
necessary  to  determine  a  monthly  or  weekly  renting,  and  that  a 
month's  or  week's  notice,  respectively,  is  sufficient. 

2d.  It  is  said  that  the  notice  in  this  case  is  insufficient,  because 
the  day  for  quitting  named  in  the  notice  was  the  first  of  August,  and 
not  the  last  day  of  July. 

The  point  made  is,  that  according  to  the  statement  of  the  affidavit, 
the  term  originally  commenced  on  the  1st  day  of  May,  and,  by  the 
usual  mode  of  computation,  it  determined  on  the  last  day  of  the 
month.  So,  throughout  the  tenancy,  the  recurring  periods  each 
terminated  on  the  last  day  of  each  month.  It  is,  therefore,  urged 
that  the  notice  was  given  to  quit  on  a  day  subsequent  to  the  last  day 
of  the  term,  and  that  then  a  new  term  had  commenced  to  run,  and 
that,  therefore,  the  tenant's  holding  must  continue  until  determined 
by  a  new  notice.     Taylor  on  Land,  and' Ten.  §  477. 

It  is  true  that  the  notice   required  to  determine  these  tenancies 


;So      ESTATES   AS   TO    QUANTITY  AND    QUALITY.     [PT.   IV.   CH.  II. 

must  be  given  to  quit  at  the  end  of  a  period.  When  a  term  has 
commenced  without  such  notice,  the  tenant  is  entitled  to  remain 
during  and  bound  to  pay  for  the  term. 

A  notice  given  to  quit,  in  the  middle  of  a  term,  is  ineffec- 
tual.    *     *     * 

By  strict  computation,  the  term  set  out  by  the  present  affidavit 
probably  terminated  on  the  last  midnight  of  July.  I  think  it  would 
be  carrying  the  rule  that  a  notice  to  quit  must  be  made  with  refer- 
ence to  the  end  of  the  term,  to  an  illogical  and  unreasonable  length 
to  hold  that  a  notice  given  for  the  day  commencing  at  that  midnight 
is  not  a  good  notice.  The  law  is  ignorant  of  fractions  of  a  day.  The 
notice  covers  all  and  any  period  of  the  twenty-four  hours  from  mid- 
night to  midnight.  The  very  moment  the  tenancy  expires  the  tenant 
is  confronted  with  a  direction  to  quit.  On  what  process  of  reason- 
ing can  it  be  said  that  a  new  term  has  commenced  before  notice  is 
given?     *     *     *  Judgment  affirmed. 


COUDERT  v.  COHN. 

118  New  York,  309.  —  1890. 

Bradley,  J.  — The  action  was  brought  to  recover  rent  of  premises 
described  in  a  written  lease  made  by  the  agent  of  the  plaintiff's 
intestate  to  the  defendants  in  January,  1884,  for  the  term  of  two 
years  and  five  months,  commencing  on  the  first  day  of  March,  1884, 
and  ending  on  the  first  day  of  August,  1886,  at  the  yearly  rent  of 
$3,000,  payable  in  equal  monthly  payments,  on  the  last  business  day 
of  each  month.  The  authority  of  the  agent  to  make  the  lease  not 
being  in  writing,  it  was  void.  2  R.  S.  134,  §  6.  The  defendants 
went  into  possession  on  the  first  of  March,  1884,  and  continued  to 
occupy  and  pay  rent  up  to  August,  1885,  when  they  left  the  premises 
and  sought  to  surrender  the  possession  up  to  the  plaintiff's  intestate, 
who  declined  to  accept  it.  He  recovered  for  the  amount  of  rent  at 
the  rate  mentioned  in  the  lease  from  the  first  of  August,  to  the  first 
of  March  following.  While  the  cases  are  not  entirely  in  harmony 
on  the  subject,  the  doctrine  now  in  this  State  is  such  that  the 
defendants  on  going  into  possession  of  the  premises  and  paying  rent, 
became,  by  reason  of  the  invalidity  of  the  demise,  tenants  from  year 
to  year,  and  in  such  case  the  continuance  of  occupancy  into  the 
ond  year  rendered  them  chargeable  with  the  rent  until  its  close. 
They  could  then  only  terminate  their  tenancy  at  the  end  of  the  current 
year.    Reeder  v.  Sayre,  70  N.  Y.  1S0;   Laughran  v.  Smith,  75  N.  Y.  205. 

The  question  presented  is:  When  did  the  rental  year  arising  out 
of  such  relation  commence  and  terminate?     It  is  contended  bv  the 


IV.  3-]  ESTATES  FROM  YEAR  TO  YEAR.  78 1 

defendants'  counsel  that  inasmuch  as  the  end  of  the  term  designated 
by  the  terms  of  the  lease  was  the  first  of  August,  1S86,  that  was 
the  time  when  the  yearly  tenancy  in  contemplation  of  law  terminated, 
and,  therefore,  the  surrender  was  properly  made  on  the  first  of 
August,  1885.  It  is  urged  that  this  view  is  in  harmony  with  the 
recognized  principle  that,  although  the  lease  was  invalid,  the  agree- 
ment contained  in  it  regulated  the  terms  of  the  tenancy  in  all  respects, 
except  as  to  the  duration  of  the  term,  and  Doe  v.  Bell,  5  D.  &  E.  471, 
is  cited.  There  a  farm  was,  in  January,  1790,  let  by  a  parol  lease, 
void  by  the  statute  of  frauds,  for  seven  years,  the  lessee  to  enter 
upon  the  land  when  the  former  tenant  left,  on  Lady-day,  and  into  the 
house  on  the  25th  of  May  following,  and  was  to  quit  at  Candlemas. 
He  entered  accordingly  and  paid  rent.  A  notice  was  served  upon 
the  tenant  September  22d,  1792,  to  quit  on  Lady-day.  In  ejectment 
brought  against  him  it  was  claimed,  on  the  part  of  the  lessee,  that 
his  holding  was  from  Candlemas,  and,  therefore,  the  notice  was 
ineffectual  to  terminate  the  tenancy.  Lord  Kenyon,  in  deciding  the 
case,  said  and  held  that  "  it  was  agreed  that  the  defendant  should 
quit  at  Candlemas,  and  though  the  agreement  is  void  as  to  the  number 
of  years  for  which  the  defendant  was  to  hold,  if  the  lessor  choose  to 
determine  the  tenancy  before  the  expiration  of  the  seven  years,  he 
can  only  put  an  end  to  it  at  Candlemas."  That  case  has  in  several 
instances  been  cited  by  the  courts  of  this  State  upon  the  question 
of  the  force  remaining  in  the  terms  of  the  agreement  embraced  in  a 
void  lease.  And  in  Schuyler  v.  Leggett,  2  Cow.  663,  it  was  remarked 
by  Chief  Justice  Savage,  in  citing  it,  that  such  an  agreement  "  must 
regulate  the  terms  on  which  the  tenancy  subsists  in  other  respects; 
as  the  rent,  the  time  of  year  when  the  tenant  must  quit,  etc."  And 
the  citation  was  repeated  to  the  same  effect  by  the  Chief  Justice  in 
People  v.  Rickert,  8  Cow.  230. 

The  question  here  did  not  arise  in  either  of  those  two  cases,  nor  can 
they  be  treated  as  authority  that  the  time  for  termination  of  a  tenancy 
from  year  to  year,  in  any  year  other  than  that  of  the  designated 
expiration  of  term,  is  governed  by  such  designation  in  a  void  lease 
for  more  than  one  year  rather  than  by  the  time  of  entry.  The  effect 
sought  to  be  given  in  the  present  case  to  the  case  of  Doe  v.  Bell  is 
not  supported  by  English  authority.  In  Berrey  v.  Lindley,  3  M.  & 
G.  496,  the  tenant  entered  into  possession  of  premises  under  an 
agreement  void  by  the  statute  of  frauds,  by  the  terms  of  which  he 
was  to  hold  five  years  and  a  half  from  Michaelmas.  Several  years 
after  his  entry,  and  after  expiration  of  the  period  mentioned  in  the 
agreement,  the  lessee  gave  notice  to  his  landlord  to  terminate  the 
tenancy  at    Michaelmas.     It   was   there   contended    on   the  part  of 


/S2      ESTATES   AS   TO  QUANTITY    AND   QUALITY.     [PT.  IV.   CH.  II. 

the  latter,  and  Doe  v.  Bell  was  cited  in  support  of  the  propo.ition, 
that  the  time  designated  in  the  agreement  for  the  termination  of  the 
tenancy  governed  in  that  respect.  But  the  court  decided  otherwise, 
and  held  that  the  notice  was  effectual  to  terminate  the  tenancy.  The 
views  of  the  court  there  were  to  the  effect,  that,  although  the  ten- 
ancy was  from  year  to  year,  the  tenant  might  without  notice  have 
quit  at  the  expiration  of  the  period  contemplated  in  the  agreement, 
but  having  remained  in  possession  and  paid  rent  subsequently  to 
that  time,  he  must  be  considered  a  tenant  from  year  to  year  with 
reference  to  the  time  of  the  original  entry. 

The  same  principle  in  respect  to  holding  over  a  term  was  announced 
in  Doe  v.  Dobell,  i  A.  &  E.  (N.  R.)  806,  where  it  was  said  that  "  in 
all  cases  the  current  year  refers  to  the  time  of  entry  unless  the 
parties  stipulate  to  the  contrary." 

The  doctrine  of  the  English  cases  seems  to  be  that  a  party  enter- 
ing under  a  lease,  void  by  the  statute  of  frauds,  for  a  term,  as 
expressed  in  it,  of  more  than  one  year,  and  paying  rent,  is  treated  as 
a  tenant  from  year  to  year  from  the  time  of  his  entry,  subject  only 
to  the  right  to  terminate  the  tenancy  without  notice  at  the  end  of 
the  specified  term.  And  to  that  extent  and  for  that  purpose  only, 
the  terms  of  agreement,  in  such  case,  regulate  the  time  to  quit. 
This  right  is  held  to  be  reciprocal.  Doe  v.  Stratton,  4  Bing.  446. 
That  proposition  is  not  without  sensible  reason  for  its  support.  The 
lease,  for  more  than  one  year,  unless  made  in  the  manner  provided 
by  the  statute,  cannot  be  effectual  to  vest  the  term  in  the  lessee,  yet 
in  other  respects  the  rights  of  the  parties  may  be  determined  by  its 
terms,  so  far  as  they  are  consistent  with  its  failure,  to  create  any 
estate  or  interest  in  the  land  or  any  duration  of  term  for  occupancy 
by  the  lessee.  And  that  principle  is  properly  applicable  to  such 
leases.  Porter  v.  Bleller,  17  Barb.  154;  Reeder  v.  Savre,  70  N.  Y. 
184;  La  ugh  ran  v.  Smith,  75  N.  Y.  205,  209. 

This  view  does  not  aid  the  defendants.  They  became  tenants 
from  year  to  year  as  from  the  time  of  their  entry;  and  although  by 
virtue  of  the  terms  of  the  agreement,  in  that  respect,  in  the  lease, 
they  may  have  been  at  liberty  to  quit  on  the  first  of  August,  1886, 
if  they  had  remained  until  then,  such  time  in  that,  or  the  year  pre- 
vious, could  not  be  treated  as  the  end  of  any  year  of  the  tenancy. 
The  defendants  having  entered  upon  the  second  year  from  the  time 
of  the  original  entry,  it  was  not  within  their  power  to  terminate 
their  relation  or  liability  as  tenants  until  the  end  of  the  then  current 
year,  which  did  not  terminate  until  the  first  day  of  March,  was 
reached. 

Judgment  affirmed. 


IV.  3-]  ESTATES    FROM    YEAR    TO    YEAR.  783 

ADAMS  v.  CITY  OF  COHOES. 

127  New  York,  175.  —  1891. 

Action  for  rent.  The  tenant  held  under  a  void  parol  lease  from 
May  1,  1875,  and  paid  his  rent  for  some  years  in  May  and  Novem- 
ber. In  August,  1885,  without  notice  to  the  landlord,  he  moved 
out.  Plaintiff  has  recovered  the  rent  to  May  1,  1886,  in  former 
actions.  This  action  is  to  recover  rent  due  November  1,  1886. 
Judgment  for  defendant.      Plaintiff  appeals. 

Potter,  J.  —  There  are  two  questions  involved  in  the  considera- 
tion of  this  appeal.  The  one  is  whether  the  defendant  was  bound 
to  give  the  plaintiff  notice  of  its  intention  to  quit  the  premises 
before  it  could  successfully  maintain  a  defense  to  the  claim  for  rent 
set  forth  in  the  complaint  in  this  action  and  if  it  was  so  bound, 
whether  the  undisputed  facts  established  upon  the  trial  of  the  action 
do  not  constitute  such  notice. 

If  such  notice  was  not  required,  or  if  required  and  was  sufficiently 
given,  the  direction  of  the  trial  court  to  the  jury  to  render  a  verdict 
for  the  defendant  was  proper. 

From  the  examination  I  have  given  the  record  in  this  case,  I  enter- 
tain a  clear  conviction  that  the  defendant  was  not  bound  to  give  the 
plaintiff  such  notice,  and  if  it  was  bound  to,  sufficient  notice  was 
given. 

The  plaintiff's  contention  is  to  the  effect  that  the  tenancy  of  the 
defendant  to  the  plaintiff,  formerly  existing,  had  not  been  legally 
terminated  prior  to  May  1,  1886,  and  that  the  defendant  continued 
liable  to  pay  the  plaintiff  the  rent  of  the  premises  from  that  date  to 
the  1st  day  of  November,  1886.  It  is  undisputed  that  the  occupation 
of  the  premises  by  defendant  ceased  upon  the  1st  day  of  August, 
1885,  and  I  am  of  the  opinion  that  the  legal  tenancy  ceased  on  the 
first  day  of  May  following  that  date. 

The  defendant  had,  prior  to  May,  1875,  occupied  the  premises 
with  the  consent  of  the  plaintiff  for  some  years,  and  paid  the  plain- 
tiff as  annual  rent  from  the  same,  the  sum  of  seven  hundred  dollars 
in  half  yearly  payments,  upon  the  first  days  of  May  and  November 
in  each  year. 

In  the  month  of  April,  1875,  the  plaintiff  gave  the  defendant  notice 
that  from  May  1,  1875,  the  rent  of  the  premises  occupied  by  defend- 
ant would  be  twelve  hundred  dollars  a  year.  Thereupon  the  common 
council  of  the  defendant  passed  a  resolution  authorizing  its  mayor 
to  lease  the  premises  of  the  plaintiff  for  the  period  of  three  years 
from  May  1,  1875,  at  a  rent  of  twelve  hundred  dollars  a  year.   There 


784      ESTATES   AS   TO   QUANTITY   AND    QUALITY.     [PT.  IV.  CH.  II. 

was  no  specification  either  in  the  requirement  of  the  plaintiff  or  in 
the  resolution  of  defendant  when  or  in  what  instalments  the  rent 
should  be  payable.  But  that  is  not  at  all  important,  for  the  defend- 
ant paid  the  increased  rent  half  yearly  as  it  had  paid  the  former  rent. 

No  written  lease  was  executed  between  the  parties,  and  as  a  parol 
lease  for  a  period  beyond  one  year  is  void,  the  relation  that  resulted 
between  the  parties  was  a  lease  for  a  year  if  the  tenant  occupied  the 
premises  during  that  period;  and  if  the  tenant  continued  in  the  occu- 
pancy of  the  premises  beyond  the  year,  he  thereby  became  a  tenant 
from  year  to  year  at  the  same  rate  of  rent.  Reeder  v.  Sayre,  70 
N.  Y.  180-182;  Laughran  x.  Smith,  75  Id.  209;  Coudert  v.  Co/in,  118 
Id.  309-31 1 ;    Talamo  v.  Spitzmiller,  120  Id.  37-43. 

The  language  of  the  court  in  Reeder  v.  Sayres,  supra,  is:  "  The 
agreement,  though  by  parol,  and  void  as  to  the  term  and  the  interest 
in  lands  sought  to  be  created,  regulates  the  relations  of  the  parties 
to  it  in  other  respects  upon  which  the  tenancy  exists,  and  may  be 
resorted  to  to  determine  their  rights  and  duties  in  all  things  con- 
sistent with  and  not  inapplicable  to  a  yearly  tenancy,  such  as  the 
amount  of  rent  to  be  paid,  the  time  of  year  when  the  tenant  could 
be  compelled  by  the  landlord  to  quit  and  any  covenants  adapted  to 
a  letting  for  a  year.  Doe  v.  Bell,  8  T.  R.  579;  8  Cow.  supra;  Arden 
v.  Sullivan,  14  Q.  B.  (Ad.  &  El.  N.  R.)  832;  Doe  x.Amey,  12  Ad. 
&  El.  476;  Berrey  v.  Lindley,  3  M.  &  G.  498;  Edivards  v.  demons,  24 
Wend.   480." 

And  the  court  through  Justice  Bradley  in  the  above  cited  case, 
Talamo  v.  Spitzmiller,  says:  "  While  there  may  appear  to  have  been 
some  confusion  in  the  cases  in  this  State  upon  the  subject,  this  doc- 
trine has  been  more  recently  recognized.  Reeder  v.  Sayre,  70  N.  Y. 
184;  Laughran  v.  Smith,  75  Id.  209. 

In  the  cases  last  cited  the  tenants  had  been  in  possession  more 
than  a  year  when  the  question  arose,  but  having  gone  into  occupancy 
under  an  invalid  lease,  their  yearly  tenancy  was  held  dependent 
upon  a  new  contract,  which  might  be  implied  from  the  payment  and 
acceptance  of  rent,  and  when  once  created  could  be  terminated  by 
neither  party  without  the  consent  of  the  other,  only  at  the  end  of 
the  year. 

The  plaintiff  contends  that  until  the  tenancy  was  terminated  by  a 
notice  from  the  defendant  that  he  intended  at  some  definite  future 
period  to  quit  the  premises,  the  tenancy  and  defendant's  liability  to 
the  rent  continued.  Now  what  are  the  relations  between  land- 
lord  and  tenant  in  a  tenancy  for  a  year  or  from  year  to  year  in 
respei  I  tithe  amount  of  rent  and  the  duration  of  the  term  or  of  the 
it  Mm  of  tenant's  liability  to  pay  rent?     The  rate  of  rent  is  that 


IV.  3-]  ESTATES  FROM  YEAR  TO  YEAR.  785 

specified  in  the  lease  for  a  year  or  in  the  void  lease.  When  the  term 
expires  in  a  valid  lease,  at  a  fixed  and  defined  period,  or  when  the 
term  is  for  one  year  by  reason  of  the  lease  being  void,  under  the 
statute  of  frauds  and  occupation  for  that  period,  no  notice  to  quit 
is  necessary.  When  the  parties  have  agreed  in  the  lease  or  the  law 
has  fixed  the  period  of  the  termination  of  the  tenancy,  it  would  be 
a  work  of  simple  supererogation  to  give  such  notice.  Hence  where 
the  duration  of  the  term  is  fixed,  there  is  no  rule  nor  any  reason  for 
a  rule,  requiring  any  notice  to  quit  to  be  given.  §  107,  McAdam, 
Landlord  and  Tenant,  and  cases  cited. 

In  tenancies  for  a  term  fixed  by  the  lease  or  by  law  for  the  want 
of  a  valid  lease  as  to  the  term,  the  rights  of  the  parties  are  determin- 
ate. The  landlord  in  such  lease  has  the  right  of  an  election.  He 
may,  if  the  tenant  does  not  vacate  the  premises  at  the  end  of  the 
term,  treat  him  as  a  wrongdoer  and  bring  ejectment  or  take  summary 
proceedings  under  the  statute  to  remove  him  from  the  premises,  and 
he  is  not  required  before  doing  so  to  serve  the  tenant  with  any 
notice  to  quit  Park  v.  Castle,  19  How.  Pr.  29,  and  the  cases  there 
cited,  or  the  landlord  may  waive  his  right  to  the  immediate  posses- 
sion and  the  wrong  of  the  tenant  in  remaining  beyond  the  expiration 
of  the  term  and  recover  of  him  the  rent  for  another  year,  for  the 
tenant  by  remaining  over  has,  by  implication,  become  a  tenant  for 
another  year  from  the  expiration  of  his  term.  §  21,  McAdam  L.  and 
T.,  citing  Schuyler  v.  Smith,  51  N.  Y.  309;  Mack  v.  Burt,  5  Hun,  28; 
Conway  v.  Starkweather,  1  Denio,  113.  So  absolute  is  the  implica- 
tion from  holding  over  for  a  few  days  only,  of  a  hiring  for  another 
year,  that  the  tenant  will  not  be  excused  from  the  payment  of  rent, 
even  where  he  gave  the  landlord  notice  before  the  end  of  the  term 
that  he  did  not  intend  to  hire  for  another  year  and  had  hired  other 
premises  which  would  be  ready  for  his  occupancy  in  a  few  days. 
Schuyler  v.  Smith,  supra.  A  good  illustration  of  this  rule  is  to  be 
found  in  the  judgments  put  in  evidence  in  this  case  where  the  plain- 
tiff herein  recovered  the  rent  of  the  entire  year,  although  the  defend- 
ants had  removed  from  the  premises  with  the  knowledge  of  the 
plaintiff  nine  months  before  the  end  of  the  year  for  which  the  plain- 
tiff recovered  the  rent.  At  the  end  of  the  year  thus  hired  by  impli- 
cation, the  rights  and  the  remedies  which  existed  at  the  end  of  the 
former  term  are  again  revived.  Those  rights  are,  as  we  have  seen, 
that  the  landlord  may  remove  the  tenant  without  notice  and  the 
tenant  may  quit  the  possession  without  giving  the  landlord  any 
notice  of  his  intention  to  do  so.  §  no,  McAdam,  L.  and  T. ;  Park 
v.  Castle,  and  the  other  cases  above  cited. 

In  Ludington  v.  Gar  lock,  29  N.  Y.  S.  R.  600,  it  was  held  in  a  case 

LAW  OF  PROP.  IN  LAND  —  50 


786      ESTATES   AS   TO    QUANTITY   AND    QUALITY.     [PT.   IV.  CH.  II. 

of  a  lease  from  month  to  month  and  the  tenant  held  over,  that  the 
tenant  who  vacated  the  premises  at  the  end  of  a  subsequent  month 
and  gave  the  agent  of  the  landlord  notice  of  that  fact  and  left  the 
keys  with  him,  that  the  tenant  was  no  longer  liable  for  the  rent  of 
the  premises.  That  case  is  analogous  to  this  in  all  respects,  except 
that  was  a  tenancy  from  month  to  month  and  this  is  a  tenancy  from 
year  to  year.  In  that  case  the  tenant  paid  during  the  time  of  the 
occupancy  and  quit  at  the  end  of  the  month.  In  the  case  at  bar 
the  defendant  did  not  quit  the  possession  at  the  end  of  the  year  as  it 
had  the  right  to  do  and  was,  therefore,  compelled  to  pay  for  nine 
months  after  it  quit  the  premises,  because  it  did  not  quit  the 
premises  at  the  end  of  the  year,  but  occupied  them  three  months 
beyond  the  end  of  a  year. 

It  is  quite  apparent  from  the  cases  above  cited  that  the  necessity 
or  occasion  for  the  service  of  a  notice  to  quit  upon  the  part  of  the 
landlord  or  tenant,  has  no  application  to  a  tenancy  which  terminates 
at  a  fixed  period.  It  is  only  in  cases  where  the  end  of  the  term  is 
not  fixed,  as  in  tenancies  at  will  or  at  sufferance,  that  the  landlord 
is  required  by  law  before  bringing  ejectment  or  summary  proceed- 
ings to  recover  possession  from  a  tenant  to  give  notice  to  quit.  2  R. 
S.  5,  §  28;  1  Id.  745,  §  7.  Those  statutes  are  evidently  based  upon 
that  theory.     Park  v.  Castle,  supra. 

I  find  no  case,  and  upon  principle  I  should  not  expect  to  find  a 
case,  holding  that  it  was  not  the  right  of  the  tenant  to  leave  the 
premises  at  the  end  of  the  term  or  requiring  him  to  give  the  land- 
lord in  such  case  a  notice  of  his  intention  to  quit  the  premises. 

We  have  before. seen  in  Park  v.  Castle,  supra,  and  the  other  cases 
cited,  that  in  such  case  the  landlord  is  not  bound  to  give  the  tenant 
notice  to  leave  even  for  the  purpose  of  instituting  summary  proceed- 
ings to  recover  possession  of  the  premises. 

If  such  is  the  case  in  respect  of  the  landlord,  why  should  it  not  be 
so  as  to  the  tenant?  Their  rights  and  duties  are  correlative  or 
reciprocal. 

My  conclusion  is  that  the  defendant  in  this  case  had  the  right  to 
quit  the  premises  at  the  end  of  any  year  from  the  first  day  of  May, 
without  giving  the  plaintiff  any  notice  of  his  intention  to  do  so. 

Judgment  affirmed. 


V.]  «         TENANCY   AT   SUFFERANCE.  787 

V.  Tenancy  at  sufferance. 

JACKSON  ex  uem.  VAN  CORTLANDT  v.  PARKHURST. 
5  Johnson,  127.  —  1809. 

This  was  an  action  of  ejectment.  The  cause  was  tried  at  the 
Oneida  Circuit,  the  5th  June,  1809,  before  Mr.  Justice  Yates. 

At  the  trial  it  was  proved  that  the  lessor  of  the  plaintiff,  by  his 
attorney,  duly  authorized  for  that  purposes,  on  the  1st  April,  1803, 
executed  a  lease  of  the  premises  in  question  to  the  defendants,  for 
three  years,  ending  on  the  1st  April,  1806.  On  the  15th  December, 
1807,  the  attorney  of  the  plaintiff  sent  a  written  notice  to  the  defend- 
ants, demanding  a  surrender  of  the  possession  of  the  premises,  and 
that,  if  they  neglected  to  deliver  up  the  possession,  they  would  be 
answerable  for  double  rent;  and  that  the  lessor  refused  to  let  them 
occupy  the  premises.  The  defendants  were  in  possession  when  this 
suit  was  commenced.  It  appeared,  that  in  June,  1806,  one  of  the 
defendants  applied  to  the  attorney  of  the  lessors,  to  know  if  he  had 
received  any  instructions  as  to  leasing  or  selling  the  premises;  who 
replied,  that  he  had  not,  nor  was  he  authorized  to  make  any  new 
agreement  with  the  defendants,  but  advised  them  to  continue  in 
possession,  until  they  heard  from  the  lessor.  The  attorney  received 
no  instructions  as  to  a  new  agreement,  until  some  time  in  the  autumn 
of  1807,  when  he  was  empowered  to  execute  a  new  lease  of  the 
premises  to  the  defendants  for  seven  years;  but  the  defendants 
refused  to  accept  the  lease. 

The  counsel  for  the  defendants  insisted,  that  the  defendants  were 
entitled  to  a  notice  to  quit,  previous  to  bringing  the  ejectment;  and, 
under  the  direction  of  the  judge,  the  jury  found  a  verdict  for  the 
plaintiff,  subject  to  the  opinion  of  the  court,  on  the  question,  whether 
the  defendants  were  entitled  to  such  notice. 

The  case  was  submitted  to  the  court  without  argument. 

Per  Curiam.  —  No  notice  to  quit  was  requisite  in  this  case.  After 
the  expiration  of  the  lease,  the  tenants  did  not  continue  in  possession 
by  any  new  agreement  with  the  plaintiff;  nor  did  the  plaintiff  do  any 
act  whatever,  from  which  a  renewal  of  the  contract,  or  a  consent  to 
the  tenant  to  hold  for  a  year  could  be  inferred.  The  proof  is  decisive 
that  the  agent,  who  gave  the  lease  for  three  years,  had  no  authority 
to  make  any  new  agreement,  and  that  he  so  declared  to  the  tenants. 
The  defendants  were,  therefore,  no  more  than  tenants  at  sufferance. 
There  must  be  a  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff.1 

1  But  of  course  notice  would  be  required  now  in  New  York  R.  P.  L.  §  198. 
For  other  cases  on  tenancy  at  sufferance  see  pp.  735-740,  supra.  —  Ed. 


CHAPTER  III. 

Licenses. 

I.  Nature  of  a  license. 

i.   In  General. 

COOK  v.  STEARNS. 

ii  Massachusetts,  533.  —  18 14. 

[Reported  herein  at  p.  480.]  ' 


2.   How  a  License  Differs  from  a  Leasehold  Interest.4 

3.   How  a  License  Differs  from  an  Easement. 

THE  GREENWOOD  LAKE  AND  PORT  JERVIS  R.  R.  CO.  v. 
THE  NEW  YORK  AND  GREENWOOD  LAKE  R.  R.  CO. 

134  New  York,  435.  —  1892. 

[Reported  herein  at  p.  472.] 

4.  Executed  and  Executory  Licenses. 
COOK  v.  STEARNS. 

11  Massachusetts,  533. —  1814. 
I 

[Reported  herein  at  p.  480.]1 

1  See  also  G.  L.  &  P.  J.  R.  R.  Co.  v.  N.  Y.  6°  G.  L.  R.  R.  Co.,  supra,  p.  472; 
Huff  v.  McCauley,  supra,  p.  76,  and  the  cases  reported  below.  As  a  license  does 
not  properly  give  an  interest  in  the  land,  but  merely  furnishes  a  defense  for  an 
hich  would  otherwise  be  a  trespass,  the  subject  may  seem  out  of  place  in 
this  "  Part."  However,  its  superficial  resemblance  to  an  estate  at  will  and  the 
thai  a  few  states  treat  it  as  an  "  interest  "  under  certain  circumstances 
may  justify  its  treatment  here.  —  En. 

'A    lea  ehold   gives   the  exclusive   possession   of   the  land   to   the   lessee  as 
against  the  Lessor.     See  cases  reported  herein.  —  En. 

[788] 


II.   i  ]  HOW   A   LICENSE    MAY    BE   GIVEN.  789 

II.  How  a  license  may  be  given. 

1.   In  Express  Terms  or  by  Implication. 

Foster,  J.,  in  STERLING  v.  WARDEN. 

51  New  Hampshire,  217.  —  1S71. 

The  substance  of  the  defendant's  attempted  justification  is,  not 
merely  that,  as  assistant  postmaster,  an  officer  and  agent  of  the 
United  States  government,  —  the  agent  and  servant  also  of  his 
immediate  principal,  Gilchrist,  the  postmaster,  an  officer  and  agent 
of  the  government.  —  he  committed  the  acts  charged  in  the  declara- 
tion, solely  and  necessarily  in  pursuance  of  his  right  and  duty;  but, 
also,  that  his  entry  upon  the  premises  and  removal  of  the  personal 
property  were  justified  by  the  license  and  permission  given  by  the 
plaintiff  to  his  principal,  Gilchrist,  and  that  the  assault  upon  the 
plaintiff  was  committed  in  self-defense,  and  was  accompanied  with 
no  unnecessary  force.  He  also  attempts  to  justify  his  entry  into  the 
building,  by  insisting  upon  the  right  of  a  citizen  to  enter  a  public 
post-office  for  the  purpose  of  getting  his  mail-matter,  alleging  that 
he  went  there  for  that  purpose,  making  his  errand  known  to  the 
plaintiff. 

We  will  first  consider  the  subject  of  the  license  given  by  the  plain- 
tiff to  Gilchrist,  — bearing  in  mind  that  upon  demurrer,  all  the  alle- 
gations of  the  defendant  are  to  be  regarded  as  established  facts. 

It  appears,  then,  that  with  full  notice  on  the  part  of  the  plaintiff 
of  the  appointment  and  qualification  of  Gilchrist  and  the  defendant 
as  postmaster  and  assistant  postmaster,  and  special  information  from 
Gilchrist  that  he  proposed  and  intended  to  go  to  the  post-office 
room  on  the  thirtieth  of  July,  "  and  then  and  there  remove  and  take 
away  therefrom  the  furniture,  articles,  and  other  things  belonging 
to  said  post-office,  and  remove  the  same  to  another  building,"  the 
plaintiff  then  and  there  "  assented  thereto,  and  gave  his  consent, 
license,  and  permission  that  said  Gilchrist  might  and  should  take 
away  and  remove  said  furniture,  articles,  and  things,  as  aforesaid." 
It  also  appears  that  the  defendant  was  employed  by  Gilchrist,  and 
acted  under  his  direction,  in  the  attempt  to  take  possession  of  and 
to  remove  the  property,  and  that  his  assistance  was  necessary  for 
this  purpose.     *     *     * 

The  plea  alleges  that  the  plaintiff  "  gave  his  consent,  license,  and 
permission  that  said  Gilchrist  might  and  should  take  away  and 
remove  "  the  public  property. 

"  A  license  is  express  where,  in  direct  terms,  it  authorizes  the  per- 
formance of  a  certain  act,  —  as  where  a  man  who  owns  a  dam  author- 
izes his  neighbor  to  draw  water  from  it  to  his  mill;  in  this  case  the 


790  LICENSES.  [PT.  IV.  CH.  III. 

licensee  has  a  right  to  enter  the  premises  to  get  the  water. ' '  2  Bouv. 
Inst.  567.  A  bare  parol  license,  though  without  consideration,  will 
furnish  a  justification  for  an  act  which  would  otherwise  be  a  tres- 
pass. Marston  v.  Gale,  24  N.  H.  177;  Batchelder  v.  Sanborn,  Ibid, 
479;  Rawson  v.  Morse,  4  Pick.  127. 

Such  a  license,  though  ordinarily  regarded  as  personal,  extending 
only  to  the  party  to  whom  it  is  expressly  given,  will  nevertheless 
apply  to  and  protect  the  agents  and  servants  of  the  licensee,  when- 
ever from  the  circumstances  it  can  be  presumed  that  there  was  an 
implied  license  to  such  persons,  —  "as  where  a  license  is  given  to 
a  man  to  remove  a  weighty  matter,  which  requires  the  assistance  of 
several  other  persons."  2  Bouv.  Inst.  56S.  A  license  to  a  man  to 
remove  a  bank  safe  would  imply  a  license  to  as  many  servants  of  the 
licensee  as  should  be  requisite  for  his  assistance.  A  license  neces- 
sarily implies  the  right  to  do  everything  without  which  the  act  can- 
not be  done.  Taylor's  Land,  and  Ten.  §  766;  Curtis  v.  Galvin,  1 
Allen,  217. 

The  plea  in  this  case  is  conclusive  upon  this  fact,  and  establishes 
the  license  to  the  defendant.  It  alleges  that  Gilchrist  requested 
the  defendant  to  assist  him,  and  that  "  it  was  necessary  and  proper, 
in  order  that  said  Gilchrist  should  be  able  to  have  sufficient  force 
conveniently  and  properly  to  take  away  and  remove  said  furniture, 
articles,  and  things  from  said  post-office  room  as  aforesaid,  that  he 
should  then  and  there  be  aided  and  assisted  by  the  defendant." 

Undoubtedly  a  bare  license  is  revocable  before  it  is  executed;  but 
there  are  licenses  which  are  irrevocable,  though  they  relate  to  an 
entry  upon  and  the  occupation  of  land  or  real  estate,  and  are  by 
parol;  "as  where,  for  instance,  the  license  is  directly  connected 
with  the  title  to  personal  property  which  the  licensee  acquires  from 
the  licenser  at  the  time  the  license  is  given,  whereby  the  license  is 
coupled  with  an  interest.  Thus,  where  one  sells  personal  chattels  on 
his  own  land,  and,  before  a  reasonable  time  to  remove  them,  forbids 
the  purchaser  to  enter  and  take  them,  it  was  held  to  be  a  license 
which  he  could  not  revoke  within  such  reasonable  time.  Nettleton 
v.  Sikest  8  Met.  34;  Wood  v.  Manley,  n  Ad.  &  E.  34;  Parsons  v. 
Camp,  11  Conn.  525;  White  v.  Elwell,  48  Me.  360;  1  Washb.  Real 
Prop.  *4oi. 

And  it  is  said  that  a  license  coupled  with  an  interest  is  where  the 
party,  obtaining  a  license  to  do  a  thing,  also  acquires  a  right  to  do 
it;  in  such  case  the  authority  conferred  is  not  merely  a  permission; 
it  amounts  to  a  grant,  and  it  may  be  assigned  to  a  third  person.  2 
Bouv.  Inst.  568. 

It  is  not  indispensable  to  the  condition  of  such  a  license  that  the 


II.   i.]  HOW    A    LICENSE    MAY    BE   GIVEN.  79I 

right  or  title  to  the  property  sought  to  be  removed  should  have  been 
derived  from  the  licenser.  The  license  to  enter  on  the  land  and 
remove  the  property  is  a  license  coupled  with  an  interest,  and  so 
assignable  and  irrevocable,  if  the  licensee's  right  to  the  possession 
of  the  property  is  derived  from  another  source,  provided  the  party 
granting  the  license  has  assented  to  the  contract  or  other  condition 
of  things  whereby  the  licensee  gains  the  title  or  the  right  to  the 
possession  of  the  property.  And  such  assent  may  be  inferred  from 
the  duty  of  the  licenser  to  recognize  the  contract  or  circumstances 
from  which  the  other  party's  right  is  derived.  A  person  cannot 
justify  entering  the  close  of  another  to  take  his  own  property,  with- 
out showing  the  circumstances  under  which  it  came  there,  even 
though  he  alleges  he  did  not  do  any  unnecessary  damage,  —  Anthony 
v.  Haneys,  8  Bing.  186;  2  Selw.  N.  P.  1342;  —  "but,"  says  Baron 
Parke,  "  all  the  old  authorities  say  that  where  a  party  places  upon 
his  own  close  the  goods  of  another  he  gives  to  the  owner  of  them 
an  implied  license  to  enter  for  the  purpose  of  recaption."  Patrick 
v.  Co/erich,  3  M.  &  W.  483;  Mussey  v.  Scott,  32  Vt.  84. 

Here,  Gilchrist  gained  his  title  to  the  possession  and  control  of 
the  property  from  the  United  States.  To  that  possession,  right,  and 
control  the  plaintiff  expressly  assented.  And  so  Gilchrist  acquired 
a  license  coupled  with  an  interest,  although  the  interest  and  title 
were  not  derived  from  the  plaintiff.  And  as  instances  of  the  effect 
of  a  license,  Vaughan,  C.  J.,  in  Thomas  v.  Sorrell,  Vaughan  Rep. 
331,  says,  —  "A  dispensation  or  license  properly  passeth  no  interest, 
nor  alters  nor  transfers  property  in  anything,  but  only  makes  an 
action  lawful  which,  without  it,  had  been  unlawful;  as  a  license  to 
go  beyond  the  seas,  to  hunt  in  a  man's  park,  to  come  into  his  house, 
are  only  actions  which,  without  license,  had  been  unlawful.  But  a 
license  to  hunt  in  a  man's  park,  and  carry  away  deer  killed  to  his 
own  use;  to  cut  down  a  tree  in  a  man's  ground,  and  carry  it  away 
the  next  day  after  to  his  own  use,  — are  licenses  as  to  the  acts  of 
hunting  and  cutting  down  the  tree;  but  as  to  the  carrying  away  the 
deer  killed  and  tree  cut  down,  they  are  grants.  So,  to  license  a 
man  to  eat  my  meat,  or  to  fire  the  wood  in  my  chimney  to  warm  him 
by,  as  to  the  actions  of  eating,  firing  my  wood,  and  warming  him, 
they  are  licenses;  but  it  is  consequent  necessarily  to  those  actions 
that  my  property  may  be  destroyed  in  the  meat  eaten  and  in  the  wood 
burnt.  So,  as  in  some  cases  by  consequent,  and  not  directly  and  as 
its  effect,  a  dispensation  or  license  may  destroy  and  alter  my 
property." 

And  Baron  Alderson,  in  Wood  v.  Leadbitter,  13  M.  &  W.  843,  says, 
"A  mere  license  is  revocable;  but  that  which  is  called  a  license  is 


JQ2  LICENSES.  [PT.  IV.   CH.  III. 

often  something  more  than  a  license;  it  often  comprises  or  is  con- 
nected with  a  grant,  and  then  the  party  who  has  given  it  cannot,  in 
general,  revoke  it  so  as  to  defeat  his  grant,  to  which  it  was  incident. ' ' 

In  J Food  v.  Manley,  n  Ad.  &  E.  34,  it  appeared  that  goods  which 
were  upon  the  plaintiff's  land  were  sold  to  the  defendant,  and  that 
by  the  conditions  of  the  sale,  to  which  the  plaintiff  was  a  party,  the 
buyer  was  to  be  allowed  to  enter  and  take  the  goods.  It  was  held 
that  after  the  sale,  the  plaintiff  could  not  countermand  the  license. 
And  the  defendant  having  entered  to  take  and  the  plaintiff  having 
brought  trespass,  and  the  defendant  having  pleaded  leave  and  license 
and  a  peaceable  entry  to  take,  to  which  the  plaintiff  replied  de 
injuria,  —  it  was  held  that  the  defendant  was  entitled  to  the  verdict, 
though  it  appeared  that  the  plaintiff  had,  between  the  sale  and  the 
entry,  locked  the  gates  and  forbidden  the  defendant  to  enter;  and 
the  defendant  had  broken  down  the  gates,  and  entered  to  take  the 
goods,  "  the  plaintiff,"  as  was  said  by  Williams,  J.,  "  having  assented 
to  the  terms  of  the  contract,  put  himself  into  a  situation  from  which 
he  could  not  withdraw." 

It  is  not  necessary,  as  before  remarked,  that  an  authority  in  law 
to  enter  into  the  post-office  and  take  the  public  property,  by  an  agent 
of  the  government  duly  authorized  for  that  purpose,  should  be 
shown,  or  presumed,  from  the  circumstances  of  the  case,  although 
perhaps  such  authority  and  right,  and  the  means  of  exercising  it, 
would  be  a  fair  legal  conclusion.  The  assent,  license,  and  permis- 
sion to  enter  and  take  the  goods  is  express  in  this  case;  and  if  the 
authority  of  a  purchaser  of  goods  from  the  vendor,  having  license 
to  enter  and  remove  them,  becomes  an  authority  coupled  with  an 
interest  irrevocable  and  assignable,  a  fortiori,  it  would  seem  that  a 
license  freely  given  by  the  party  who  never  had  any  property  in  the 
goods,  and  whose  right  to  the  possession  had  been  terminated  by  his 
removal  from  office,  —  a  license  given  to  his  successor  in  office, 
entitled  by  law  to  the  possession  of  the  property,  —  could  not  be 
regarded  as  a  license  of  more  restricted  character.  Under  the 
defendant's  plea,  he  may  prove  a  license  in  law  or  in  fact  express  or 
implied.     4  Bouv.  Inst.  57. 

Moreover,  the  pleas  allege  no  revocation,  in  terms  nor  by  implica- 
tion, of  the  license  to  Gilchrist;  and  we  have  seen  that  such  license, 
by  necessary  consequence,  implies  a  license  to  employ  such  agents, 
servants  and  assistance  as  may  be  requisite  to  make  the  license 
effectual.      *     *     * 

Another  important  consideration  is  suggested  by  the  pleadings. 
It  is  shown  that  "  when  the  defendant  arrived  at  said  post-office 
building  as  aforesaid,  and  during  all  the  time  when  he  was  in  and 


III.]  ASSIGNABILITY    OF    LICENSE.  793 

about  said  building  and  room,  as  is  hereinafter  set  forth,  said  Gil- 
christ was  in  and  about  said  building  and  room  for  the  purpose,  and 
was  engaged  in  the  work  and  business  of  taking  away  and  removing 
said  furniture,  articles,  and  things  as  aforesaid." 

So  that  it  would  seem  that  when  the  defendant  entered  the  build- 
ing, the  plaintiff,  regardful  as  well  of  his  duty  as  his  license,  had 
abandoned  the  possession  and  control  of  the  goods  to  Gilchrist,  and 
that  the  license  therefore  had  been  substantially  executed;  and  a 
license  executed  is  not  countermandable.  Liggins  v.  Zuce,  7  Bing. 
682.     *     *     * 


III.  Assignability  of  license. 

BLAISDELL  v.  RAILROAD. 

51  New  Hampshire,  483.  —  1871. 

Trespass  qnare  clausum  f regit  against  the  Portsmouth,  Great  Falls 
&  Conway  Railroad,  forbidding  a  railroad  across  plaintiff's  lands  and 
using  same  to  date  of  writ.  Defendant  pleaded  a  license  from  one 
Brackett,  deceased,  whose  estate  plaintiff  now  has,  to  the  predecessor 
of  the  defendant  company.  Demurrer.  Finding  of  law  reversed  for 
this  court. 

Sargent,  J.  —  The  argument  of  the  plaintiff,  that  no  consent  to 
enter  upon  land  for  the  purpose  of  building  a  railroad  could  be 
effectual,  or  of  any  avail,  unless  the  right  to  enter  by  strict  compli- 
ance with  all  the  requirements  of  the  statute  had  been  acquired  is 
not  well  founded. 

One  man  can  give  to  another  permission  or  license  to  make  a  rail- 
road or  dig  a  canal  on  his  land,  just  as  well  as  to  make  a  private  way 
or  dig  a  ditch. 

And  it  matters  not  whether  the  party  wishing  to  build  or  to  dig 
has  a  charter,  or  an  act  of  incorporation,  or  any  other  authority  to 
do  it,  or  whether  he  have  pursued  one  course  or  another  previously 
to  obtaining  the  land-owner's  consent  or  license. 

The  license  which  he  thus  obtains  of  the  land-owner  is  a  sufficient 
authority  for  all  acts  done  upon  said  land  within  the  scope  of  the 
license,  and  will  so  continue  until  it  is  revoked;  and  nothing  more 
is  needed  as  a  license  to  justify  the  building  of  a  railroad  on  land  of 
another  than  to  build  a  barn  or  fence. 

The  demurrer  to  this  plea  of  license  and  the  joinder  in  demurrer 
raise  the  question  whether  the  facts  set  forth  in  this  plea  in  bar 
amount  to  a  justification  of  the  alleged  trespass  complained  of. 


794  LICENSES.  [PT.  IV.   CM.   III. 

The  plea  does  not  claim  any  title  to  the  land,  or  any  interest  or 
easement  in  the  soil.  The  defendants  only  claim  a  license  from 
Brackett.  But  a  license  does  not  convey  any  right  or  estate  in  the 
land,  and  amounts  to  nothing  more  than  an  excuse  for  an  act  which 
would  otherwise  be  a  trespass.      Cook  v.  Steams,  n  Mass.  537,  538. 

If  any  right  or  easement  in  the  soil  were  claimed,  then  the  law 
requiring  that  such  right  must  be  by  deed,  the  defendants  should 
have  pleaded  their  deed  or  other  conveyance,  so  that  the  court 
might  see  whether  it  was  a  lawful   conveyance  of  the  right  or  not. 

Id.  536,  537- 

Where  no  deed  is  averred,  or  other  instrument  in  writing,  which 
would  convey  an  interest  in  land,  it  is  to  be  presumed  that  the 
authority  relied  on  is  only  by  parol,  a  mere  permission  or  license. 

Such  parol  licenses  may  be  in  writing,  or  verbal;  but  there  is  no 
distinction  between  the  two,  if  the  writing  has  not  the  legal  requisites 
to  make  it  a  deed  or  grant  of  real  estate.  Dodge  v.  McClintock,  47 
N.  H.  383,  was  a  case  of  a  license  in  writing,  but  not  amounting  to 
a  deed  or  grant,  was  held  to  be  merely  by  parol.  So  in  this  case  it 
makes  no  difference  whether  the  license  was  verbal  or  written,  —  it 
is  pleaded  as  a  license,  and  not  as  a  deed;  and  therefore  we  inquire 
whether,  from  the  facts  stated  in  the  plea,  such  license  is  an  answer 
to  the  plaintiff's  case?  If  the  license  had  been  given  by  this  plaintiff 
to  these  defendants  directly,  it  would  be  a  good  answer  to  this  action 
of  trespass  if  it  had  not  been  revoked,  and  standing  on  demurrer 
would  be  well  enough.  But  in  this  case  the  plea  admits  that 
Brackett,  who  is  alleged  to  have  given  the  license,  is  dead,  and  that 
the  plaintiff  holds  his  estate;  and  no  license  is  alleged  from  the 
plaintiff. 

The  plea  also  admits  that  the  party  or  company,  to  whom  the 
original  license  was  given,  has  sold  out  to  these  defendants  since  the 
alleged  license  was  given,  and  no  license  to  these  defendants, 
directly,  is  claimed  to  have  been  given  by  any  one.  When  the  title 
in  the  land  passed  from  Brackett  to  this  plaintiff,  the  license  which 
is  here  pleaded  was  revoked  and  terminated,  and  the  assignment  of 
the  railroad  to  these  defendants,  by  those  to  whom  the  license  was 
first  granted,  also  terminated  the  license,  as  it  was  a  mere  personal 
privilege,  and  incapable  of  assignment.     Cowles  v.  Kidder,  24  N.  H. 

37%  38°- 

There  can  be  no  prescription  or  adverse  possession  in  this  case; 
whatever  is  held  under  a  license  cannot  be  held  adversely.  Dodge 
v.  McClintock,  ante;  see  also  Carleton  v.  Redington,  21  N.  H.  291; 
Marston  v.  Gale,  24  X.  H.  176;   Houston  v.  Laffee,  46  N.  H.  507. 

Demurrer  sustained. 


IV.  i.]  REVOCATION   OF    LICENSE.  795 

IV.  Revocation  of  license.1 

1.   When  Irrevocable. 

a.   An  executed  license.'' 

b.   An  executed  license  to  interfere  with  or  obstruct  an  easement. ' 

Peckham,  J.,  in  WHITE  v.  MANHATTAN  RAILWAY  CO. 

139  New  York,  19.  —  1893. 

The  plaintiffs  insist  that  the  paper  was  of  no  more  effect  than  a 
parol  license  to  do  work  on  the  land  of  the  licensor  would  have  been, 
and  that  it  was  revocable  at  the  pleasure  of  the  licensor,  and  that  a 
revocation  was  effected  by  the  conveyance  of  the  land,  and  by  the 
commencement  of  this  action  by  the  devisees  of  the  former  owner, 
James  H.  White. 

There  is  no  finding  or  proof  that  the  plaintiffs  have  any  title  to 
any  portion  of  the  street  or  square  upon  which  their  building  fronts, 
but  there  is  a  finding  that  they  acquired  with  their  title  to  the 
premises  the  right  to  have  Chatham  square  kept  open  as  a  public 
street,  "  and  to  have  a  free  and  unobstructed  right  of  way,  access 
and  passage  to  and  from  said  premises,  and  over  and  upon  said 
street,  together  with  all  the  use  and  benefit  of  the  light  and  air  com- 
ing in  and  upon  said  lot  and  premises  through  and  from  said  street, 
free  and  unobstructed." 

I  think  the  proof  shows  without  contradiction  that  all  the  rights  in 
the  street  they  had  were  what  has  been  termed  property  rights  in  the 
nature  of  easements  of  light,  air  and  access.  Story  Case,  90  N.  Y. 
122;  Kane  Case,  125  Id.  164,  and  cases  cited. 

The  defendants,  therefore,  insist  that  as  the  plaintiffs  or  their  pre- 
decessors had  no  title  to  any  portion  of  the  street,  the  consent  of 
their  predecessors,  while  in  the  possession  and  ownership  of  the 
abutting  land,  that  the  defendants  might  construct  and  operate  the 
railroad  in  the  square  in  front  of  their  land,  was  more  than  a  mere 
license  to  do  an  act  on  the  land  of  the  licensor,  and  that  it  amounted 
in  law  and  in  fact  to  an  abandonment  of  their  rights  or  easements  in 

1  There  are  two  distinct  cases  involved  under  this  heading:  (1)  After  the 
licensee  has  done  the  act  or  series  of  acts  for  which  the  permission  was  given, 
may  the  licensor  revoke  the  license  so  as  to  hold  the  licensee  for  trespass  on 
account  of  such  acts?  (2)  Has  the  licensor  a  right  to  forbid  the  continued  main- 
tenance of  a  condition  which  resulted  from  the  doing  of  the  act  or  series  of 
acts?  The  customary  treatment  of  the  subject  has  been  followed  here,  but  the 
student  should  observe  that  some  of  the  cases  come  under  one  query  some 
under  the  other.  —  Ed. 

2  See  cases  generally  under  this  chapter.  —  Ed. 


796  LICENSES.  [PT.  IV.  CH.  III. 

the  street  so  far  as  was  necessary  for  the  construction  and  operation 
of  the  railroad,  and  that  the  consent  to  such  construction  having 
been  acted  on  and  large  amounts  of  money  expended  on  the  faith 
thereof,  the  plaintiffs  as  the  successors  of  those  who  gave  the  con- 
sent are  themselves  estopped  from  making  any  claim  for  damages 
arising  from  such  construction  and  operation.  It  has  been  the  law 
in  this  State  for  a  number  of  years,  that  an  easement  to  do  some  act 
of  a  permanent  nature  on  the  land  of  another  can  be  created  only  by 
a  deed  or  conveyance  in  writing,  operating  as  a  grant,  and  that  a 
consent  in  writing  on  the  part  of  the  landowner  is  no  more  valid 
than  if  it  were  by  parol. 

Thus  a  parol  agreement  by  the  owner  of  the  land  that  a  person 
may  abut  and  erect  a  dam  on  such  land,  not  for  a  temporary  purpose, 
but  for  a  permanent  use  such  as  the  creation  of  a  water  power  for 
the  use  of  mills,  is  void,  and  the  agreement  being  a  mere  license 
may  be  revoked  even  after  it  has  been  acted  upon  by  the  other 
party.  Also  a  permanent  easement  to  drain  through  the  land  of 
another  is  not  created  by  a  license  so  to  do,  even  when  in  writing 
and  made  upon  a  good  consideration.  Mumford  v.  Whitney,  15 
Wend.  381;  Wiseman  v.  Lucksinger,  84  N.  Y.  31;  Cronkhite  v.  Cronk- 
hite,  94  Id.  323;  Babcock  v.  Utter,  1  Abb.  Ct.  of  App.  Dec.  27,  and 
cases  cited;  Eckerson  v.  Crippen,  no  N.  Y.  585. 

The  question  of  the  establishment  of  an  easement  by  adverse  user, 
which  may  authorize  the  presumption  of  a  grant,  is  not  involved, 
nor  is  the  ability  to  thus  prove  its  existence  denied.  Hammond  x . 
Zehner,  21  N.  Y.  118.  It  is,  however,  held,  what  would  otherwise 
seem  to  be  plain  enough,  that  there  can  be  no  adverse  user  where 
the  right  to  use  exists  and  is  exercised  under  a  license.  84  N.  Y. 
31,  supra. 

The  reasoning  upon  which  these  decisions  as  to  the  insufficiency  of 
a  license  are  based,  is  that  the  right  which  is  claimed  under  a  license 
amounts  to  an  interest  in  land  and  that  such  interest  cannot  be 
created  and  cannot  pass  to  another  without  a  proper  conveyance  or 
grant  of  such  interest  in  writing  and  under  seal  as  required  by  our 
statute.  It  is  said  that  a  license  is  a  mere  authority  to  enter  upon 
the  land,  and  is  a  sufficient  protection  to  the  licensee  while  it  lasts, 
but  that  it  may  be  revoked  at  any  time,  and  after  its  revocation  it 
cannot  be  used  as  a  protection  for  any  future  acts.  It  is  held  there 
can  be  no  equitable  estoppel  which  will  operate  to  prevent  the  revo- 
cation of  the  license,  grounded  upon  the  fact  that  the  licensee  has 
entered  upon  the  land  of  the  licensor  and  expended  thereon  labor  and 
money  upon  the  faith  of  the  license,  because  it  must  be  held  that 
the  licensee  knew  that  the  license  gave  him  no  interest  in  the  land, 


IV.  i.]  REVOCATION   OF   LICENSE.  797 

and  that  he  must  rely  only  upon  the  indulgence  of  the  licensor,  and 
if  that  be  withdrawn  he  must  himself  withdraw  from  the  land. 
Otherwise,  it  is  said,  the  statute  in  regard  to  the  creation  and  con- 
veyance of  interest  in  land  would  be  in  great  part  abrogated. 
The  easements  of  abutting  owners  in  New  York  city,  who  are  with- 
out title  to  any  portion  of  the  streets  upon  which  their  lands  abut, 
differ  somewhat  in  their  origin  from  ordinary  easements.  They  have 
not  been  created  by  grant  or  covenant,  but  it  is  said  of  them  that 
it  is  easier  to  realize  their  existence  than  to  trace  their  origin;  that 
they  arise  from  the  situation,  the  course  of  legislation,  the  trust 
created  by  statute,  the  acting  upon  the  faith  of  public  piedges  and 
upon  a  contract  between  the  public  and  the  property  owner,  implied 
from  all  the  circumstances,  that  the  street  shall  be  kept  open  as  a 
public  street,  and  shall  not  be  devoted  to  other  and  inconsistent  uses. 
Kane  Case,  125  N.  Y.,  supra.  Whatever  the  means  by  which  the 
easements  were  created  they  are  in  their  nature  the  same  as  if  they 
had  been  created  by  grant.  The  owners  thereof  cannot  be  divested 
of  them  without  their  consent  unless  they  are  compensated  therefor. 
Although  it  may  generally  be  said,  under  the  authority  of  the  cases 
already  cited,  that  an  easement  in  the  nature  of  an  interest  in  the 
land  of  another  can  only  be  created  by  a  grant,  yet  after  it  has  been 
created  and  while  it  is  in  existence,  it  may  be  abandoned  and  thus 
extinguished  by  acts  showing  an  intention  to  abandon  and  extinguish 
the  same.  This  has  been  many  times  decided  and  by  many  different 
courts.  A  cesser  to  use,  accompanied  by  an  act  clearly  indicat- 
ing an  intention  to  abandon  the  right,  would  have  the  same  effect  as 
a  release  without  reference  to  time.  Snell  v.  Levitt^  no  N.  Y.  595, 
and  cases  cited  in  opinion  of  Earl,  J.,  at  page  603.  The  intention 
to  abandon  is  the  material  question  and  it  may  be  proved  by  an 
infinite  variety  of  acts.  If  a  third  party  interested  in  the  servient 
estate  has  acted  upon  such  abandonment,  and  in  regard  to  whom  it 
would  operate  unjustly  if  the  exercise  of  the  easement  should  be 
resumed  in  favor  of  the  dominant  estate,  added  force  is  given  to  the 
claim  of  abandonment.     Id. 

The  railroad  company  having  procured  the  consent  of  the  authori- 
ties of  the  city  to  the  construction  of  the  railroad  in  the  street  or 
square  in  question  upon  the  terms  agreed  upon,  such  company 
obtained  an  interest  in  and  to  a  certain  extent  a  title  to  the  street 
for  the  purposes  of  the  construction  and  operation  of  its  railroad, 
which  was  in  the  nature  of  property,  and  which  was  sufficient  to 
enable  it  to  treat  with  abutting  property  owners  in  the  character  of 
one  who  had  an  interest  in  the  servient  estate.  People  v.  O'Brien, 
in  N.  Y.  1. 


798  LICENSES.  [PT.  IV.  CH.  III. 

The  case  before  us  is,  therefore,  different  from  those  cases  where 
an  easement  has  been  claimed  to  have  been  created  in  the  land  of  a 
third  person,  by  reason  of  his  mere  license  to  enter  upon  his  land 
and  do  some  act  of  a  permanent  nature  which  would  amount,  if  the 
right  should  continue,  to  an  interest  in  the  land  of  such  person. 
This  interest  in  land,  the  cases  hold,  requires  a  grant.  In  this  case 
the  owners  of  the  abutting  land  had  no  title  to  the  street.  They 
had  an  easement  in  it  only,  and  their  consent  purported  to  carry  no 
title  to  land.  There  can  be  no  question  that  they  had  the  right  to 
release,  abandon  or  otherwise  extinguish  that  easement,  and  upon 
such  terms  as  they  should  think  fit.  The  question  before  us  is, 
whether  they  have  done  so  and  to  what  extent  by  the  execution  of 
the  paper  proved  upon  the  trial. 


c.  A  license  subsidiary  to  an  interest  or  valid  grant. } 
STERLING  v.  WARDEN. 

51  New  Hampshire,  217.  —  1871. 
[Reported  herein  at  p.   789.] 


d.   By  equitable  estoppel  when  the  licensee  has  incurred  expense  in  conse- 
quence of  the  fraud  of  the  licensor. % 

JACKSON    &    SHARP    COMPANY   v.    THE    PHILADELPHIA, 
WILMINGTON  AND  BALTIMORE  RAILROAD  COMPANY. 

4  Delaware  Chancery,  180.  —  1871. 

The  Chancellor.  —  The  claim  made  on  the  part  of  the  complain- 
ants to  the  perpetual  use  of  the  side  track  in  controversy  as  a  legal 
right  is  based  upon  two  grounds.  One  of  these  is,  that  the  right 
was  acquired  by  contract  between  their  predecessors,  — Jackson  & 
Sharp,  and  the  Railroad  Company, — the  other,  that  even  were 
there,  in  the  first  instance,  no  contract,  but  only  a  permissive  use 
of  the  track  under  a  license,  still,  that  the  license,  having  been  acted 
upon  in  the  expenditure  of  large  sums  of  money  on  the  faith  of  its 

1  In  these  cases  there  can  be  no  revocation  until  the  entire  purpose  of  the 
license  has  been  fulfilled  and  that  whether  the  license  be  partly  executed  or 
wholly  executory  at  the  time  the  revocation  is  attempted.  —  Ed. 

''  In  this  case  and  under  e  below  the  result  of  the  rule  is  to  give  the  licensee 
an  interest  in  tin-  land  in  most  instances  as  it  permits  him  to  maintain  perma- 
nently any  works  or  structures  vv h ich  he  may  have  erected.  —  En. 


IV.   r.]  REVOCATION   OF   LICENSE.  799 

indefinite  continuance,  has  become  irrevocable  under  the  doctrine 
of  equitable  estoppel.  *  *  *  Let  us  then  proceed  to  consider 
the  case  in  the  aspect  of  a  license. 

On  this  branch  of  the  case  there  are  several  material  points  upon 
which  no  controversy  was  raised  in  the  argument.     One  of  these  is, 
that  the  right  claimed  for  the  complainant  is  to  an  easement  or  inter- 
est in   the  land  of  the   Railroad  Company,  the  claim   being  to   the 
perpetual   use  of  the  side   track   as  a  right  appurtenant  to  the  car 
works,  transmissible  with  the  title  to  them,  and  binding  the  land  of 
the  company  into  whosesoever  hands  it  may  come,  at  least  so  long  as 
it  shall  be  used  for  the  purposes  of  a  railroad.     Pitkin  v.  The  Long 
Island  Railroad  Company,  2  Barb.  Ch.  R.  221,  is  a  case  very  similar. 
Further,  it  is  agreed  that  at  law  an  estate  or  interest  in  land  can  be 
created  only  by  deed  or  grant  under  seal,  or  by  prescription,  or  in  this 
country  by  twenty  years  adverse  possession  or  user;  in  equity  such 
an  interest  may  additionally  be  acquired  by  contract,  which,  however, 
must,  under  the  statute  of  frauds,  be  in  writing,  subject  to  an  excep- 
tion of  the  equity  arising  out  of  part  performance  of  a  verbal  con- 
tract.    Again,  it  must  be  admitted  that  a  license  or  permission  to 
exercise  some  privilege  upon  the  land  of  the  licensor  can  create  no 
estate  or  interest  in  the  land,  such  as  binds  the  land  and  is  trans- 
missible from  the  licensee,  the  utmost  effect  of  a  license  being  to 
confer  a  personal  privilege,  which  is  not  assignable  or  transmissible, 
and   is  revocable  at  the  licensor's  pleasure.     Nor   does   it  matter 
whether  the  license  be  by  parol  or  in  writing,  so  long  as  it  remains 
a  mere  license,  not  converted  into  a  conveyance,  grant  or  contract, 
nor  rendered  irrevocable  by  estoppel,  as  under  some  circumstances, 
to  be  presently  noticed,  it  may  be  in  equity  though  not  at  law.      Few 
points  have  undergone  more  discussion,  and  have  at  length  come  to 
be  better  settled,  than  the  insufficiency  of  a  license  at  law  to  create 
or  transfer  an   interest  in  land       In   England  the  leading  cases  are 
Fentiman  v.  Smith,  4  East,  107;  Rex  v.  Herndon  on  the  Hill,  4  M.  & 
S.  565;  Hewlins  v.  Shippman,  5  B.  &  C.  221,  (n  E.  C.  L.  207);  Bryan 
v.  Whistler,  8  B.  &  C.  288  (15  E.  C.  L.  149);  Coeker  v.  Coivper,  1  C.  M. 
&  R.  418,  and  Wood  v.  Leadbitter,  13  M.  &  W.  838,  in  which  last  case 
the  prior  course  of  decisions  is  very  fully  reviewed.     In  this  country 
the  same  rule  was  adjudged,  as  early  as  1814,  by  C.  J.  Parsons,  in 
Cook  v.  Stevens,  n  Mass.  533.      He  has  been  followed  in  many  of  the 
States.     Mumfordv.   Whitney,  15  Wend.  384;  Foot  v.  The  N.  H.  & 
Northampton  Railroad  Company,  23  Conn.  214;  Foster  v.  Brozoning,  4 
R.  I.  47;   Den  v.  Baldwin,    1   Zabriskie,   390;  Hays  v.  Richardson,  1 
G.  &  F.  38;  Carter  v.  Harlan,  6  Md.  20;  Bridges  v.  Purcell,  1  Dev. 
&  Bat.  492. 


800  LICENSES.  [PT.  IV.  CH.  III. 

But  it  was  earnestly  urged  that  although  a  license  is  revocable  so 
long  as  it  is  executory  and  the  parties  remain  in  statu  quo,  it  ceases 
to  be  so,  under  the  doctrine  of  equitable  estoppel,  after  it  has  been 
executed,  the  licensee  having  expended  money  or  otherwise  involved 
himself  so  that  he  cannot  recede  without  prejudice;  that  in  this  case 
Jackson  &  Sharp  having  made  large  expenditures  in  erecting  and 
afterwards  enlarging  their  car  works  upon  the  faith  of  their  enjoying 
the  continued  use  of  this  side  track,  the  railroad  company  are 
equitably  estopped  from  revoking  the  license. 

Were  this  a  case  in  a  court  of  law,  the  answer  would  be  that  at  law 
a  license  can  under  no  circumstances  become  irrevocable  by  estoppel 
when  the  effect  would  be  to  create  an  interest  in  land.  The  doctrine 
of  equitable  estoppel,  although  largely  adopted  in  courts  of  law  and 
frequently  so  applied  as  to  render  licenses  irrevocable,  has  been  held 
not  to  apply  to  licenses,  which,  if  rendered  perpetual,  would  amount 
to  an  easement  in  lands.  The  reason  is  a  plain  and  necessarily  con- 
clusive one,  viz.:  that  courts  of  law  do  not  recognize  mere  equities, 
such  as  arise  out  of  an  equitable  estoppel  enforced  against  the  legal 
owner  of  lands;  but  they  deal  only  with  legal  estates,  such  as  are 
acquired  through  legal  forms  of  conveyance,  or  their  equivalent  under 
the  statute  of  limitations,  an  adverse  possession,  of  twenty  years, 
or  at  least  by  writing  under  the  statute  of  frauds.  Hence,  a  mere 
license  affecting  lands  is  at  law  always  revocable,  even  though 
granted  for  a  valuable  consideration,  as  in  Fentiman  v.  Smith,  4  East, 
107,  and  Wood  v.  Leadbitter,  3  M.  &  W.  833,  and  although  the 
licensee  may  have  expended  money  under  it,  which  was  a  feature  of 
many  of  the  cases  before  cited. 

It  is  true,  however,  that  in  this  court,  equities  in  land  though  not 
created  by  any  deed,  grant  or  writing  whatever,  but  springing  out 
of  the  acts  and  relations  of  the  parties,  are  largely  enforced,  and 
among  these  a  large  class  are  those  which  arise  under  the  doctrine 
of  equitable  estoppel  applied  to  prevent  constructive  fraud,  —  as 
where  one  having  title  to  land  is  knowingly  silent  in  the  presence  of 
an  innocent  purchaser  from  a  third  person,  or  where  one  knowing  his 
title  to  land  silently  permits  another  ignorantly  to  build  on  it,  — in 
these,  and  in  like  cases,  this  court,  in  order  to  prevent  fraud,  will 
raise  out  of  the  transaction  an  equity  in  favor  of  the  party  misled, 
binding  the  conscience  of  the  owner  and  restraining  the  exercise  of 
his  legal  rights  against  such  party.  No  reason  is  perceived  why,  in 
a  proper  case,  the  same  principle  should  not  in  equity  restrain  the 
revoi  at  ion  of  ;i  privilege  affecting  the  use  of  land.  But  it  must  be 
carefully  ohserved  that  this  principle  of  equitable  estoppel  proceeds 
upon  the  ground  of  preventing  fraud.     Its  effect,  when  applied,  is 


IV.  I.]  REVOCATION   OF   LICENSE.  Soi 

to  restrain  a  party  from  exercising  his  legal  right,  and  this  even  a 
court  of  equity  cannot  do  unless  there  have  been  on  his  part  some 
conduct,  declaration  or  improper  concealment,  misleading  an  inno- 
cent person  to  his  prejudice  and  rendering  the  assertion  of  the  legal 
right  as  against  such  person  an  act  of  bad  faith,  amounting  to  con- 
structive fraud.  Moreover,  it  may  be  well  added  that  to  warrant 
the  interference  of  the  court  with  the  legal  right  or  title  of  a  party, 
the  case  relied  on  to  work  the  estoppel  must  be  clear,  beyond  doubt, 
upon  the  facts.  And  the  more  stringently  do  these  rules  apply  in  a 
case  such  as  this,  where  the  effect  of  the  estoppel,  if  allowed,  will  be 
to  convert  what  was  originally  a  bare  privilege,  temporary  and  revo- 
cable, into  an  easement  in  the  licensor's  land,  perpetually  binding  it 
as  transmissible  from  the  licensee. 

It  is  a  fatal  infirmity  in  this  branch  of  the  complainant's  case  that 
there  was  nothing  in  all  the  communications  had  between  the  officers 
of  the  Company  and  Jackson  &  Sharp,  or  in  the  conduct  of  these 
officers,  to  justify  Jackson  &  Sharp  in  assuming  that  the  company, 
by  granting  the  accommodation  applied  for  intended  to  relinquish 
any  right  of  property  in  the  soil.  It  is  agreed  that  no  stipulation  or 
promise  to  that  effect  was  expressed.  *  *  *  Looking  to  all  the 
circumstances  of  the  case,  it  is  my  conviction  that  although  the 
connection  of  the  car  works  with  the  railroad  was  doubtless  con- 
templated on  both  sides  as  one  to  be  in  fact  permanent,  yet  that  no 
stipulation  to  that  effect  was  asked  or  given,  or  supposed  by  either 
party  to  have  been  given;  but  that  the  arrangement  was  tacitly  left 
to  rest  upon  the  general  understanding  with  respect  to  such  accom- 
modation, Jackson  &  Sharp  either  not  anticipating  the  contingency 
which  has  now  happened,  or  trusting  to  the  mutual  interest  and 
good  will  of  the  parties  as  a  sufficient  guarantee  for  the  permanence 
of  the  connection,  without  securing  it  as  a  legal  right  according  to 
prescribed  forms  of  law.  Their  disappointment  certainly  involves 
them  in  no  little  hardship.  But  hardship  is  not  a  ground  for  equitable 
relief,  except  in  favor  of  one  who,  without  any  negligence  in  secur- 
ing his  rights  by  the  appropriate  legal  modes,  has  been  misled  to  his 
prejudice  through  some  fraud  or  laches  of  the  party  against  whom 
the  relief  is  sought,  or  by  such  conduct  of  the  latter  as  renders  it  an 
act  of  bad  faith  to  take  advantage  of  the  mistake. 

The  injunction  must  be  dissolved  and  the  bill  dismissed. 
[law  of  prop  in  land.  —  51.] 


802  LICENSES.  [PT.  IV.   CM.  III. 

e.    Cases  where  licensee  has  paid  consideration,  or  has  incurred  expense  in 
executing  the  license  and  there  is  no  positive  fraud. 

CROSDALE  v.  LANIGAN. 

129  New  York,  604.  —  1892. 

Andrews,  J.  —  This  case  presents  a  question  of  importance  from 
the  principle  involved,  although  the  particular  interest  affected  by 
the  decision  is  not  large. 

The  action  was  brought  to  obtain  equitable  relief  by  injunction  to 
restrain  the  defendant  from  tearing  down  a  stone  wall  erected  on 
the  defendant's  land  by  the  plaintiff,  under  an  alleged  parol  license 
from  the  defendant,  and  in  the  erection  of  which  the  plaintiff 
expended  in  labor  and  materials  a  sum  exceeding  one  hundred  dol- 
lars. The  parties  are  the  owners  of  adjoining  lots  fronting  upon  a 
public  street.  The  plaintiff's  lot  is  west  of  the  lot  of  the  defendant. 
The  land  in  its  natural  state  descended  toward  the  east.  In  1S86  the 
plaintiff  graded  his  lot.  and  in  so  doing,  raised  an  embankment 
several  feet  high  along  his  eastern  line,  adjacent  to  the  lot  of  the 
defendant,  and  erected  a  house  on  his  lot.  In  1887  the  defendant 
graded  his  lot  and  excavated  the  earth  up  to  his  west  line,  adjacent 
to  the  embankment  on  the  plaintiff's  lot,  to  the  depth  of  four  or 
more  feet,  thereby  removing  the  natural  support  to  the  lot  of  the 
plaintiff  as  it  was  in  its  orginal  state.  Before  the  defendant  had 
completed  his  excavation,  the  parties  had  an  interview  and  the  ques- 
tion of  the  support  of  the  plaintiff's  embankment  arose.  The  plain- 
tiff claimed  that  the  defendant  was  bound  to  build  a  wall  where  his 
excavation  was.  The  defendant  denied  his  obligation  to  do  so  and 
referred  to  the  fact  that  the  plaintiff  had  raised  his  land  several  feet 
higher  than  it  was  in  its  natural  state.  The  plaintiff  wanted  the 
defendant  to  sell  him  two  feet  of  his  land  to  build  a  wall  upon,  which 
the  defendant  declined  to  do.     *     *     * 

Some  days  after  the  interview  *  *  *  the  defendant  addressed 
a  letter  to  the  plaintiff,  in  which  *  *  *  he  said:  *  *  *  "I 
have  thought  the  matter  over  seriously,  put  myself  in  your  place,  so 
to  speak,  and  decided  to  give  you  two  feet  asked  for  to  build  your 
wall  on."     *     *     * 

This  case  was  tried  and  decided  upon  the  theory  that  the  plaintiff 
had  a  license  from  the  defendant  to  build  the  wall  on  his  land, 
which,  when  executed,  became  in  equity  irrevocable.  It  was  not 
claimed  on  the  trial,  nor  is  it  now  claimed,  that  there  was  any  con- 
tract on  the  part  of  the  defendant  to  sell  the  land  occupied  by  the 
wall   to  the  plaintiff,  which,  by  reason  of  part  performance,  equity 


IV.   i.]  REVOCATION    OF    LICENSE.  803 

will  enforce.  The  claim  and  the  finding  is  that  the  license  to  enter 
upon  the  defendant's  land,  when  acted  upon  by  the  plaintiff,  con- 
ferred upon  him  a  right  in  equity,  in  the  nature  of  an  easement,  to 
maintain  the  wall  on  the  defendant's  lot.  If  this  claim  is  well 
founded,  there  has  been  created,  without  deed  and  in  violation  of 
the  statute  of  frauds,  an  interest  in  the  plaintiff  and  his  assigns  in 
the  land  of  the  defendant,  impairing  the  absolute  title  which  he 
theretofore  enjoyed,  and  subjecting  his  land  to  a  servitude  in  favor 
of  the  adjacent  property.  It  is  quite  immaterial  in  result  that  this 
interest  claimed,  if  it  exists,  is  equitable  and  not  legal.  An  encum- 
brance has  been  created  upon  the  defendant's  lot,  and  his  ownership, 
to  the  extent  of  such  interest,  has  been  divested. 

We  are  of  opinion  that  this  judgment  is  opposed  to  the  rule  of  law 
established  in  this  State.  There  has  been  much  contrariety  of 
decision  in  the  courts  of  different  States  and  jurisdictions.  But  the 
courts  in  this  State  have  upheld  with  great  steadiness  the  general 
rule  that  a  parol  license  to  do  an  act  on  the  land  of  the  licensor, 
while  it  justifies  anything  done  by  the  licensee  before  revocation,  is, 
nevertheless,  revocable  at  the  option  of  the  licensor,  and  this, 
although  the  intention  was  to  confer  a  continuing  right  and  money 
had  been  expended  by  the  licensee  upon  the  faith  of  the  license. 
This  is  plainly  the  rule  of  the  statute.  It  is  also,  we  believe,  the 
rule  required  by  public  policy.  It  prevents  the  burdening  of  lands 
with  restrictions  founded  upon  oral  agreements,  easily  misunder- 
stood. It  gives  security  and  certainty  to  titles,  which  are  most 
important  to  be  preserved  against  defects  and  qualifications  not 
founded  upon  solemn  instruments.  The  jurisdiction  of  courts  to 
enforce  oral  contracts  for  the  sale  of  land,  is  clearly  defined  and  well 
understood,  and  is  indisputable;  but  to  change  what  commenced  in 
a  license  into  an  irrevocable  right,  on  the  ground  of  equitable 
estoppel,  is  another  and  quite  different  matter.  It  is  far  better,  we 
think,  that  the  law  requiring  interests  in  land  to  be  evidenced  by 
deed  should  be  observed,  than  to  leave  it  to  the  chancellor  to  con- 
strue an  executed  license  as  a  grant,  depending  upon  what,  in  his 
view,  may  be  equity  in  the  special  case.  There  are  several  circum- 
stances in  the  present  case  which  render  the  enforcement  of  such  a 
jurisdiction  a  dangerous  precedent.  The  only  license  claimed  is 
contained  in  the  letter  of  April  13th.  The  language  is:  "I  have 
decided  to  give  you  the  two  feet  you  asked  for  to  build  your  wall 
on."  How  far  the  wall  was  to  extend,  its  character,  or  how  it  was 
to  be  built,  is  not  stated.  Referring  to  the  previous  interview  to 
which  the  letter  alludes,  the  evidence  of  the  plaintiff  of  what  was 
said  at  the  interview  leaves  the  whole  matter  indefinite  and  uncertain. 


804  LICENSES.  [PT.  IV.  CII.  III. 

He  testifies  that  neither  the  description,  dimensions  and  character 
of  the  proposed  wall  were  spoken  of.  The  testimony  of  the  defend- 
ant is  to  the  contrary,  but  perhaps  it  is  to  be  assumed  that  the  trial 
judge  adopted  the  testimony  of  the  plaintiff. 

Upon  the  case  made  by  the  plaintiff  upon  the  letter  and  the  prior 
conversations,  if  it  was  a  contract,  it  is  difficult  to  see  how  it  could 
be  enforced  in  equity.  The  cases  are  decisive  that  equity  will  only 
enforce  a  parol  contract  for  an  interest  in  land  when  the  contract  is 
definite  and  certain  in  all  its  parts.  The  extent  of  the  injury  which 
will  be  suffered  unless  equity  intervenes  is  also  an  element  to  be  con- 
sidered when  its  extraordinary  jurisdiction  is  invoked.  Here  the 
amount  expended  by  the  plaintiff  in  reliance  upon  the  license  was 
comparatively  small.  The  most  reasonable  inference  is  that  the 
plaintiff  confided  in  the  good  faith  of  the  defendant  as  his  security 
that  the  wall  would  be  permitted  to  remain.  It  does  not  appear 
that  anything  was  said  as  to  the  time  it  should  be  maintained.  It 
is  claimed  that  the  wall  was  built  for  the  benefit  of  both  parties. 
This  is  founded  on  the  assumption  that  the  defendant's  excavation 
removed  the  natural  support  of  the  plaintiff's  land,  and  subjected 
him  to  liability.  But  this  would  not  take  the  case  out  of  the  statute 
nor  authorize  the  interference  of  equity  to  enforce  the  license  as  a 
grant  in  equity.  The  same  element  of  common  benefit  is  found  in 
the  case  of  Cronkhite  v.  Cronkhite,  94  N.  Y.  323. 

The  trial  judge  refused  to  find  the  facts  as  to  the  effect  which 
would  have  followed  from  the  defendant's  excavation  in  case  the 
plaintiff's  land  had  continued  in  its  natural  state.  He  tried  and 
decided  the  case  on  the  theory  that  the  license  when  executed 
became  irrevocable.  In  this  we  think  he  erred.  The  cases  of 
Minn  ford  v.  Whitney,  15  Wend.  380;  Wiseman  v.  Lucksinger,  84  N.  Y. 
31;  and  Cronkhite  v.  Cronkhite,  supra,  are,  we  think,  decisive  of  this 
action. 

Judgment  reversed. 


FERGUSON  v.  SPENCER. 
127  Indiana,  66.  —  1890. 

Mitchell,  J. — The  nature  of  the  action,  as  disclosed  by  the 
pleadings,  is  not  very  well  defined.  It  may  be  regarded  as  a  suit  to 
recover  damages  caused  by  interrupting  the  flow  of  an  artificial 
stream  through,  or  diverting  it  from,  a  tile  drain  through  which 
water  was  supplied  to  the  plaintiff's  animals  on  her  farm. 

The  merits  of  the  case  may  be  determined  upon  the  following  facts 
returned   to   the   court   in   a  special   verdict.      In    1884  the  plaintiff, 


IV.   I.]  REVOCATION   OF   LICENSE.  805 

Mrs.  Spencer,  and  the  appellant,  William  Ferguson,  were  adjoining 
landowners  in  Warren  county,  their  farms  being  separated  by  a  pub- 
lic highway  running  east  and  west  on  the  division  line.  Their  farms 
occupied  such  a  relation  that  surface  and  spring  water  collected  on 
and  issuing  from  the  defendant's  land  was  discharged  over  and 
through  a  depression,  with  more  or  less  defined  banks,  through  a 
similar  depression  over  and  upon  the  plaintiff's  land.  In  the  year 
above  mentioned  the  parties  mutually  agreed  to  construct  a  covered 
tile  drain,  of  specified  dimensions,  to  be  laid  at  a  given  depth,  each 
to  construct  the  distance  required,  on  his  or  her  own  land.  In 
pursuance  of  this  agreement  the  plaintiff,  commencing  at  the  high- 
way separating  her  farm  from  that  of  the  defendant,  constructed  a 
drain  of  the  dimensions  agreed  upon  of  the  length  of  forty  rods,  at 
a  cost  of  over  sixty  dollars.  The  defendant  at  the  same  time  con- 
structed a  similar  drain  on  his  land,  connecting  it  with  that  built  by 
the  plaintiff  at  one  end,  and  with  an  existing  tile  drain  on  his  land 
at  the  other,  thereby  making  a  continuous  drain  over  the  lands  of 
both,  through  which  water  flowed  constantly.  The  drain  thus  con- 
structed was  beneficial  to  the  plaintiff's  farm,  enhancing  its  value  by 
affording  her  more  perfect  drainage  than  before,  and  by  furnishing 
a  constant  supply  of  living  water  for  stock  on  her  farm,  she  having 
utilized  the  water  by  constructing  a  convenient  watering  place.  In 
1887  the  defendant  refused  to  continue  the  arrangement,  and  dug 
up  some  of  the  tiling  on  his  own  land,  so  as  to  disrupt  the  drain 
and  diminish  the  supply  of  water,  to  the  damage  of  the  plaintiff. 

The  question  is  whether  or  not,  after  money  had  been  expended 
in  constructing  the  drain  in  reliance  upon  the  agreement,  either  of 
the  parties,  without  the  consent  of  the  other,  could  terminate  the 
arrangement  without  becoming  liable  for  any  damage  which  might 
result? 

The  effect  of  the  agreement,  when  acted  upon  by  the  parties,  was 
to  create  mutual  or  cross-licenses  in  favor  of  each  in  the  land  of  the 
other.  Each  was  given  a  license  from  the  other  to  make  use  of  the 
other's  land  for  the  purpose  of  conducting  water  over  it  for  a  pur- 
pose supposed  beneficial  to  his  own  land. 

A  license  is  defined  to  be  an  authority  given  to  do  some  act,  or  a 
series  of  acts,  on  the  land  of  another  without  possessing  an  estate 
therein.  Cook  v.  Stearns,  11  Mass.  533,  13  Am.  &  Eng.  Encyc.  of 
Law,  539. 

By  means  of  the  arrangement  entered  into  the  plaintiff  obtained  a 
license  to  connect  the  covered  tile  drain  which  she  constructed  with 
a  similar  drain  constructed  by  the  defendant,  thereby  affording  her 
the  means  of  draining  or  conducting  water  from  springs  and  other 


8o6  LICENSES.  [PT.  IV.  CII.  III. 

sources  on  the  defendant's  land  for  the  benefit  of  her  farm.  This 
is  found  to  have  been  a  valuable  privilege,  to  obtain  which  the  plain- 
tiff expended  money  in  reliance  upon  a  mutual  agreement  entered 
into  with  the  defendant.  It  is  everywhere  settled  that  a  parol  license 
to  use  the  land  of  another  is  revocable  at  the  pleasure  of  the  licensor, 
unless  the  license  has  been  given  upon  a  valuable  consideration,  or 
money  has  been  expended  on  the  faith  that  it  was  to  be  perpetual 
or  continuous.  Where  a  license  has  been  executed  by  an  expenditure 
of  money,  or  has  been  given  upon  a  consideration  paid,  it  is  either 
irrevocable  altogether,  or  cannot  be  revoked  without  remuneration, 
the  reason  being  that  to  permit  a  revocation  without  placing  the 
other  party  in  statu  quo,  would  be  fraudulent  and  unconscionable. 
Nowlin  v.  J  J 'hippie,  120  Ind.  596;  Robinson  v.  Thrailkill,  no  Ind.  117; 
Snowden  v.    Wilas,  19  Ind.  10;   Clark  v.  Glidden,  60  Vt.  702. 

Where  a  license  is  coupled  with  an  interest,  or  the  licensee  has 
done  acts  in  pursuance  of  the  license  which  create  an  equity  in  his 
favor,  it  cannot  be  revoked.  East  Jersey  Iron  Co.  v.  Wright,  32  N.  J. 
Eq.  248. 

The  present  case  is  closely  analogous  to  Clark  v.  Glidden,  supra, 
where  it  was  held  that  an  executed  license  to  lay  pipes  to  conduct 
water  from  one  farm  to  another,  for  the  benefit  of  the  owner  of  the 
latter,  was  irrevocable,  and  the  licensor  was  enjoined,  upon  terms, 
from  interfering  with  the  water-pipes  laid  in  pursuance  of  the  license. 

The  present  case  is  not  distinguishable  in  principle.  It  may  be 
conceded  that  the  adjudications  upon  the  subject  of  the  right  to 
revoke  parol  licenses  are  not  uniform,  and  that  they  cannot  be  suc- 
cessfully classified,  or  arranged  into  harmonious  groups;  but  it  is 
the  settled  law  of  this  State,  as  it  is  of  many  others,  that  where  a 
license,  involving  the  expenditure  of  money,  has  been  so  far  executed 
that  its  withdrawal  would  operate  as  a  fraud  upon  the  person  who 
expended  money  in  reliance  upon  it,  no  revocation  can  take  place 
without  making  compensation  to  the  person  injured  by  the  with- 
drawal. Simons  v.  Morehouse,  88  Ind.  391,  and  cases  cited;  Rogers 
v.  Cox,  96  Ind.  157.  Thus  in  Rerick  v.  Kern,  14  Serg.  &  Rawle, 
267,  16  Am.  Dec.  497,  and  note,  a  leading  case  on  the  subject,  it  is 
held  that  an  executed  license,  the  execution  of  which  involved  the 
expenditure  of  money  or  labor,  is  regarded  in  equity  as  an  executed 
agreement  for  a  valuable  consideration,  and  that  it  is,  therefore, 
irrevocable,  although  given  merely  by  parol  and  relating  to  the  use 
and  occupation  of  real  estate.  This  doctrine  is  so  thoroughly  set- 
tled by  the  decisions  of  this  court  that  we  do  not  deem  it  profitable 
to  elaborate  ill-  subject  further.  See  5  Lawson,  Rights  and  Reme- 
dies, ij  -^75;    Woodbury   v.    Parshiey,  7    N.   H.    237.      The   rule   is,  of 


IV.   i.]  REVOCATION   OF    LICENSE.  807 

course,  different  where  nothing  but  a  mere  naked  license  is  involved. 
Parish  v.  K as  pa  re,  109  Ind.  586. ' 

It  may  be  conceded  that  a  different  rule  prevails  in  the  State 
of  New  York,  as  well  as  in  some  other  States.  Cronkhite  v.  Cronk- 
hitet   94  N.   Y.   323;  Johnson  v.  Skill/nan,  29  Minn.  95,  43  Am.   Rep. 

IQ2.       *       *       * 

Judgment  affirmed. a 


f.   In  all  other  cases  revocable. 
McCREA  v.  MARSH. 
12  Gray,  211.  —  1858. 

Metcalf,  J.  — It  was  correctly  ruled,  at  the  trial,  that  the  plain- 
tiff could  not  maintain  this  action,  and  that  his  remedy,  if  any,  was 
by  an  action  of  contract.  We  therefore  need  not  express  an  opinion 
concerning  any  of  the  other  rulings. 

Assuming  that  the  plaintiff,  by  purchase  of  the  ticket  from  the 
defendant,  obtained  permission  to  enter  the  family  circle  in  the 
Howard  Athenaeum,  in  his  own  person,  and  occupy  a  place  there 
during  the  exhibition,  yet  it  was  "  only  an  executory  contract."  It 
was  a  license  legally  revocable,  and  was  revoked  before  it  was  in  any 
part  executed.  After  it  was  revoked,  the  plaintiff's  attempts  to 
enter  were  unwarranted,  and  the  defendant  rightfully  used  the  force 
necessary  to  prevent  his  entry. 

According  to  the  decision  in  Woody.  Leadbitter,  13  M.  &  W.  838, 
even  if  the  plaintiff  had  been  permitted  to  enter  the  family  circle, 
the  defendant  might  have  ordered  him  to  leave  it,  at  any  time  dur- 
ing the  exhibition,  and,  upon  his  refusal,  might  have  removed  him, 
using  no  unnecessary  force.  The  doctrine  of  revocable  licenses  was 
there  thoroughly  discussed,  and  the  authorities  analyzed  by  Mr. 
Baron  Alderson,  and  the  case  of  Tayler  v.  Waters,  7  Taunt.  374, 
and  2  Marsh.  551,  was  overruled.  See  also  Adams  v.  Andrews,  15 
Ad.  &  El.  N.  R.  296;  Roffey  v .  Henderson,  17  Ad.  &  El.  N.  R.  574; 
Bridges  v.  Purcell,  1  Dev.  &  Bat.  492;  Foot  v.  New  Haven  &  North 
Hampton  Co.,  23  Conn.  214;  Jamieson  v.  Millemann,  3  Duer,  255. 

1  See  also  Huff  v.  McCauley.  supra,  p.  76.  —  Ed. 

2  In  Clark  v.  Gliddcn,  supra,  the  decree  provided  that  "  the  injunction  remain 
in  force  so  long  as  the  present  aqueduct  lasts,  with  the  right  in  the  oratrix  and 
her  heirs  and  assigns,  during  that  time,  of  repairing  the  same  as  may  be  neces- 
sary to  keep  it  usable,  but  not  with  the  right  of  making  any  repairs  that  shall  in 
any  just  sense  amount  to  a  renewal  of  the  aqueduct  itself."  —  Ed. 


808  LICENSES.  [PT.  IV.  CII.  III. 

The  plaintiff  is  doubtless  entitled  to  recover,  in  an  action  of  con- 
tract, the  money  paid  by  him  for  the  ticket,  and  all  legal  damages 
which  he  sustained  by  the  breach  of  the  contract  implied  by  the  sale 
and  delivery  of  the  ticket. 

Exceptions  overruled. 


HIRTH  v.  GRAHAM. 

50  Ohio  State,  57.  —  1893. 

\Reported  herein  at  p.  34.] 


CHAPTER  IV. 
Incorporeal  Interests  in  Land. 

1.  Nature  and  kinds. 

i.   In  General.1 

2.  An  Incorporeal  Interest  May  be  as  for  a  Fee,  or  for  Life 

or  a  Leasehold.2 

II.  Easements.3 

i.   Nature  in  General. 

a.    Continuous  and  discontinuous.      Illustrations. 

GILMORE  v.  DRISCOLL. 

122  Massachusetts,  199.  —  1877. 

[Reported  herein  at  p.  826.] 


WALKER  v.  PIERCE. 
38  Vermont,  96.  —  1865. 
[Reported  herein  at  p.  822.] 


1  In  our  American  law  "  an  incorporeal  hereditament  is  a  right  issuing  out  of 
a  thing  corporate  "  real,  "  or  concerning  or  annexed  to,  or  exercisable  within,  the 
same,"  and  "  transmissible  to  heirs,  according  to  the  law  regulating  the  inherit- 
ance of  land."  See  2  Black.  Com.  20;  2  Broom  &  Hadley,  20.  See  also  note  8. 
in  Hammond's  Edition,  2  Black.  Com.  Blackstone  enumerates  ten  sorts  of 
incorporeal  hereditaments:  "  Advowsons,  tithes,  commons,  ways,  offices,  dig- 
nities, franchises,  corodies  or  pensions,  annuities  and  rents."  Many  of  these  are 
obsolete  and  some  of  them  would  not  come  within  our  definition  as  given  above. 

Future  interests  in  lands  are  sometimes  classed  as  incorporeal  hereditaments, 
though  not  with  strict  propriety.  The  contingent  right  to  enter  in  case  a  condi- 
tion should  be  broken  has  a  better  claim  to  be  treated  here,  but  see  p.  527,  supra, 
and  under  future  estates  infra.  —  Ed. 

2 See  Huff v.  McCauley,  supra  p.  76,  at  p.  78.  —  Ed. 

3  From  the  point  of  view  of  the  servient  tenement  these  are  often  called  servi- 
tudes. — .Ed. 

[809] 


8lO  INCORPOREAL    INTERESTS    IN    LAND.      [PT.  IV.  CH.  IV. 

b.   Appendant  or  appurtenant,  or  in  gross? 

BOATMAN  v.  LASLEY. 
23  Ohio  State,  614.  —  1873. 

McIlvaine,  J.  —  Is  a  private  right  of  way  over  the  lands  of 
another,  in  gross,  such  an  interest  or  estate  in  land,  as  may  be 
cast  by  descent,  or  may  be  assigned  by  the  grantee  to  one  who  has 
no  interest  in  the  land?  These  are  the  only  questions  in  this  case. 
If  such  a  right  be  inheritable  or  assignable,  the  Court  of  Common 
Pleas  erred  in  its  charge;  otherwise  there  is  no  error  in  the  record. 

The  terms  of  the  deed  from  Lasley  to  Logue  plainly  import  an 
intention  to  make  the  right  of  way  therein  granted  appendant  and 
appurtenant  to  other  lands,  but  the  record  does  not  disclose  either 
the  facts  or  the  law  given  to  the  jury,  whereby  it  could  determine 
whether  or  not  that  intention  was  accomplished.  It  simply  shows 
that  the  jury  was  instructed  that  if  the  right  of  way  granted  did  not 
and  could  not,  under  the  circumstances,  become  appurtenant  to  lands 
other  than  those  over  which  it  was  granted,  then  it  was  a  mere  per- 
sonal right  in  the  grantee,  which  could  not  be  inherited  from  him, 
or  transferred  by  him  to  a  stranger. 

The  correctness  of  this  instruction  does  not  depend  upon  a  con- 
struction of  the  deed  by  which  it  was  granted,  for  the  terms  of  the 
grant  are  "  to  Alexander  Logue,  his  heirs  and  assigns."  The  real 
question  is,  whether  or  not  a  private  right  of  way  in  gross  is,  in  law, 
capable  of  being  transferred  or  transmitted. 

It  is  strongly  insisted  upon,  in  argument,  that  a  right  of  way,  in 
gross,  maybe  conveyed  to  the  grantee  "  and  to  his  heirs  and  assigns 
forever,"  because  an  owner  in  fee  may  carve  out  of  his  estate  any 
interest  less  than  the  whole  and  dispose  of  the  less  estate  absolutely; 
and  this  because  the  power  to  dispose  of  the  whole  estate  includes  a 
power  to  dispose  of  any  part  of  it. 

This  argument  assumes  the  affirmative  of  the  very  question  in  con- 
troversy, to-wit,  that  such  a  right  of  way  is  an  interest  or  estate  in 
the  land. 

A  mere  naked  right  to  pass  and  repass  over  the  land  of  another, 
a  use  which  excludes  all  participation  in  the  profits  of  the  land,  is  not, 
in  any  proper  sense,  an  interest  or  estate  in  the  land  itself.  Such  a 
right  is  in  its  nature  personal;  it  attaches  itself  to  the  person  of  him 
to  whom  it  is  granted,  and  must  die  with  the  person. 

If  such  a  right  be  an  inheritable  estate,  how  will  the  heirs  take? 

1  "  Easements  in  gross  "  not  being  inheritable  in  modern  times  have  ceased 
to  1'"  incorporeal  hereditaments,  and  are  mere  persona]  rights.  —  En. 


II.  2.]  EASEMENTS.  8ll 

In  severalty,  in  joint  tenancy,  coparcenary,  or  as  tenants  in  com- 
mon?    If  not  in  severalty,  how  can  their  interests  be  severed? 

If  it  be  assignable,  what  limit  can  be  placed  on  the  power  of  alien- 
ation? To  whom  and  to  how  many  may  it  be  transferred?  Why  not 
to  the  public  at  large,  and  thus  convert  into  a  public  way  that  which 
was  intended  to  be  a  private  and  exclusive  way  onlyr 

Where  the  way  is  appendant  or  appurtenant  to  other  lands,  very 
different  considerations  arise.  There  the  right  attaches  to  the  land 
to  which  the  way  is  appurtenant,  because  it  is  granted  for  the  con- 
venience of  their  occupation  without  respect  to  the  ownership  or 
number  of  occupants.  In  such  case  the  right  of  way  passes  with  the 
dominant  estate  as  an  incident  thereto.  A  right  of  way  appendant 
cannot  be  converted  into  a  way  in  gross,  nor  can  a  way  in  gross  be 
turned  into  a  way  appendant. 

A  very  marked  distinction  also  exists  between  a  way  in  gross  and 
an  easement  of  profit  a  prendre;  such  as  the  right  to  enter  upon  the 
lands  of  another,  and  remove  gravel  or  other  materials  therefrom. 
The  latter  so  far  partakes  of  the  nature  of  an  estate  in  the  land  itself, 
as  to  be  treated  as  an  inheritable  and  assignable  interest.  Post  v. 
Pear  sail,  22  Wend.  432. 

Both  upon  principle  and  authority,  we  think  there  was  no  error  in 
the  charge  of  the  court  below.  Mr.  Washburn  in  his  work  on  Ease- 
ments, page  8,  par.  n,  states  the  law  upon  this  subject  as  follows: 
"  A  man  may  have  a  way  in  gross  over  another's  land,  but  it  must, 
from  its  nature,  be  a  personal  right  not  assignble  or  inheritable;  nor 
can  it  be  made  so  by  any  terms  in  the  grant,  any  more  than  a  col- 
lateral and  independent  contract  can  be  made  to  run  with  the  land." 
See  also  Ackroyd  v.  Smith,  10  C.  B.  164;  Garrison  v.  Budd,  19  111. 
558;  Post  v.  Pearsall,  22  Wend.  432;  Woolrych  on  Ways,  20;  2  Black. 
Com.  35;  3  Kent's  Com.  420,  512. 

Leave  refused. 


2.   How  Created. 

a.   By  grant. 

(1.)  Express. 

WALKER  v.  PIERCE. 

38  Vermont,  94.  —  1865. 
[Reported  herein  at  p.  822.] 


8l2  INCORPOREAL    INTERESTS    IN    LAND.      [PT.  IV.  CM.  IV. 

(2.)  Implied. 
(a.)  Implied  in  consequence  of  a  restrictive  covenant, 

BLAKEMORE  v.  STANLEY. 

159  Massachusetts,  6.  —  1893. 

{Reported  herein  at  p.  387.] 


ROWLAND  v.  MILLER. 

139  New  York,  93.  —  1893. 

[Reported  herein  at  p.  388.] 


(0.)  Implied  where  oivner  of  premises  sells  a  parcel  for  which  he  has  created  special 
advantages  to  the  detriment  of  the  rest.1 

CURTTSS  v.  AYRAULT. 

47  New  York,  73.  —  1871. 
[Reported  herein  at  p.  126.] 


(c.)  Implied  by  reference  in  deed  to  a  way  or  a  map  showing  a  way. 

Grover,  J.,  in  COX  v.  JAMES. 

45  New  York,  557.  —  1871. 

The  question  whether  the  lot  conveyed  to  the  plaintiff  was  bounded 
by  north  side  of  or  center  of  the  alley,  is  not  material  to  the  right 
claimed  by  the  plaintiff  in  the  action,  which  was  a  right  of  way  over 
the  alley,  and  the  correctness  of  the  legal  conclusion  of  the  referee 
upon  this  point  will  not  be  examined.  The  judgment  declaring  the 
plaintiff  entitled  to  a  right  of  way  over  the  alley  cannot  be  sustained 
upon  the  ground  that  he  required  the  right  as  a  way  from  necessity, 
for  the  reason  that  access  might  be  had  from  the  land  conveyed  to 
public  streets;  nor  can  it  be  sustained  upon  the  ground  that  the  alley 
had  been  dedicated  to  the  public  as  a  highway,  for  the  reason  that  it 
had  never  in  any  way  been  accepted  or  used  as  such  by  the  public. 
The  only  ground  upon  which  the  judgment  can  be  sustained,  is  that 
the  plaintiff  acquired  a  right  of  private  way  over  the  alley  as  appur- 
tenant to  the  lands  conveyed  to  him  by  the  Maxwells.  This  right 
had  not  become  appurtenant  to  the  lands  in  consequence  of  a  pre- 
vious user  in   connection  therewith,  the  alley  never  having  been  so 

'The  interests  ari:-irikr  under  (n)  and  (/')  are  often  called  "  equitable  ease. 
merits."  —  Ed. 


II.  2.]  EASEMENTS.  813 

used.  The  substantial  facts  proved  and  found  by  the  referee,  are 
that  the  Maxwells,  prior  to  their  conveyance  to  the  plaintiff,  were 
the  owners  of  a  parcel  of  land,  embracing  the  lands  conveyed  to  the 
plaintiff,  South  alley  and  other  lands;  that  they  caused  the  said 
parcel  to  be  surveyed  and  subdivided  into  lots,  of  suitable  size  for 
building  purposes,  and  a  map  thereof  to  be  made,  upon  which  the 
lots  were  designated  by  numbers,  and  South  alley  designated  as  an 
alley,  and  afterward  conveyed  lots  forty-eight,  forty-nine  and  fifty 
to  the  plaintiff,  describing  lot  fifty  as  all  that  certain  lot  situate  in 
the  village  of  Saratoga  Springs,  known  and  distinguished  as  lot 
number  fifty  on  a  map  of  village  lots  owned  by  the  parties  of  the 
first  part,  referring  particularly  to  the  said  map,  and  specifying  the 
boundaries  of  the  lot  as  laid  down  thereon,  referring  as  follows  to 
South  alley;  thence  to  a  stake  in  north  line  of  South  alley;  thence 
along  the  north  line  of  South  alley,  etc.  South  alley  was  laid  down 
on  the  map  as  an  alley  running  along  the  boundary  of  the  lot,  sixteen 
feet  in  width,  continuing  along  past  the  rear  of  lot  fifty,  and  along 
other  lots  owned  by  the  Maxwells.  This  conveyance  of  the  lot,  so 
made  in  reference  to  the  map  designating  the  strip  as  an  alley,  gave 
the  plaintiff  a  right  of  way  over  the  alley  to  the  rear  of  his  lot,  as 
against  his  grantors  and  their  subsequent  grantee  of  the  alley.  In 
re  Mayor,  2  Wend.  472;  Smyles  v.  Hastings,  22  N.  Y.  217;  Badeau 
v.  A/ead,  14  Barb.  328.  The  question  whether  the  plaintiff  had  not 
an  adequate  legal  remedy  for  the  disturbance  of  this  right  of  way 
does  not  arise,  as  it  was  not  insisted  upon  in  the  answer.  Roy  v. 
Piatt,  4  Paige,  77;  Truscott  v.  Kingt  2  Seld.  147.  The  rights  of  the 
party  were  established  by  the  conveyances.  This  renders  an  exam- 
ination of  the  exceptions  taken  by  the  defendant  to  other  evidence 
introduced  by  the  plaintiff  unnecessary. 


b.   By  operation  of  law. 

KUHLMAN  v.  HECHT. 

77  Illinois,  570.  —  1875. 

[Reported  herein  at  p.  819.] 

HOLMES  v.  SEELEY. 

19  Wendell  (N.  Y.),  507.  —  1838. 

[Reported  herein  at  p.  817.] 


S14  INCORPOREAL    INTERESTS   IN    LAND.      [PT.  IV.  GIL  IV. 

c.   By  prescription. 
KUHLMAN  v.  HECHT. 

77  Illinois,  570.  —  1875. 
{Reported  herein  at  p.  819.] 


3.   Transfer  of  an  Easement.1 

4.   Destruction  of  an  Easement. 

a.   Effect  of  release t  abandonment,  non-user;  merger. 

SNELL  v.  LEVITT. 

no  New  York,  59s.  —  1888. 

fir 

Earl,  J. — *     *     *     This  easement  having  been  acquired  by  Mrs. 

Higgins  by  grant  could  not  be  lost  by  mere  nonuser  for  any  length  of 
time.  It  could  be  lost  by  adverse  user  or  possession  by  the  owner  of 
the  servient  tenement,  and  the  easement  could  be  lost  and  extinguished 
bv  abandonment  in  some  of  the  modes  or  by  some  of  the  means 
recognized  in  the  law.  Nonuser  for  a  period  of  twenty  years,  under 
such  circumstances  as  show  an  intention  to  abandon  and  give  up  the 
easement,  is  sufficient  to  extinguish  it;  and  even  an  abandonment 
for  a  shorter  period,  under  such  circumstances  as  show  an  intention 
to  give  up  and  release  an  easement,  which  is  acted  upon  by  the 
owner  of  the  servient  tenement  so  that  it  would  work  harm  to  him 
if  the  easement  were  thereafter  asserted  would  operate  to  extinguish 
the  easement. 

Here  there  is  no  doubt  of  the  actual  intention  of  Mrs.  Higgins  to 

I  abandon  the  easement  acquired  by  her  from  Edwin  Snell.  She 
expressly  agreed  to  relinquish  it  for  the  consideration  of  $75  in 
money  and  the  right  to  draw  water  from  other  logs  for  an  indefinite 
time;  and  that  agreement  was  acted  upon  for  more  than  twenty 
years.  During  that  time,  the  defendant,  and  others  through  whom 
he  claims,  purchased  the  servient  tenement  by  warranty  deeds  with- 
out any  notice  whatever  of  any  claim  of  an  existing  easement  under 
the  deed  to  Mrs.  Higgins  in  the  premises  conveyed.  These  facts 
are  undisputed  and  upon  them  the  trial  court  should  have  held  and 
ruled,    as    matter   of   law,    that   the   easement  was  abandoned    and 

1  .  extinguished.  Vogler  v.  Geiss,  51  Md.  407;  Steere  v.  Tiffany,  13  R. 
I.  568;  Dyer  v.  San  ford,  9  Met.  395;  Curtis  v.  Noonan,  10  Allen, 
406;  Morse  v.  Copeland,  2  Gray,  302;  Pope  v.  Devereux,  5  Gray,  409; 


1  Sec  Kuhlman  v.  He  Jit.  infra,  p.  S19.  —  Ed. 


II.  4-]  EASEMENTS.  815 

King  v.  Murphy,  140  Mass.  254;  Queen  v.  Chorley,  12  Ad.  &  El.  N. 
S.  515;  Crossley  v.  Lightowler,  L.  R.  2  Ch.  App.  478,  482;  Cariwright 
v.  Maplesdcn,  53  N.  Y.  622;  White's  Bank  v.  Nichols,  64  Id.  65.  In 
Washburn  on  Easements,  3d  ed.,  at  page  661  and  subsequent  pages, 
the  author  says:  "  The  owner  of  an  easement  may  destroy  his 
right  to  the  same  by  actually  abandoning  the  right  as  well  as  the 
enjoyment,  especially  if  a  third  party  become  interested  in  the 
servient  estate  after  such  act  of  abandonment;  and  it  would  operate 
unjustly  upon  him  if  the  exercise  of  the  easement  were  resumed  in 
favor  of  the  dominant  estate.  It  is  not  easy  to  define,  in  all  cases, 
what  would  be  such  act  of  abandonment  as  would  destroy  a  right  of 
easement,  and  each  case  seems  to  be  a  matter  for  a  jury  to  determine. 
But  nothing  short  of  an  intention  so  to  abandon  the  right  would 
operate  to  that  effect,  unless  other  persons  have  been  led  by  such 
acts  to  treat  the  servient  estate  as  if  free  of  the  servitude,  and  the 
same  could  not  be  resumed  without  doing  an  injury  to  their  rights 
in  respect  to  the  same.  And  in  this  it  is  not  intended  to  embrace 
questions  which  may  arise  from  a  mere  nonuser  of  an  easement." 
"  The  question  of  abandonment  is  one  of  intention,  depending  upon 
the  facts  of  the  particular  case.  But  time  is  not  a  necessary  element 
in  a  question  of  abandonment.  A  cesser  to  use,  accompanied  by  an 
act  clearly  indicating  an  intention  to  abandon  the  right,  would  have 
the  same  effect  as  a  release,  without  reference  to  time."  "  Although 
an  abandonment  is  sometimes  inferred  from  a  nonuser  for  twenty 
years,  it  seems  to  depend  less  upon  the  duration  of  the  time  than  the 
acts  which  accompany  the  ceasing  to  use  the  easement  for  its  effect 
upon  the  right.  The  length  of  time  that  this  is  continued  is  one  of 
the  elements  from  which  the  intention  to  abandon  or  retain  the  right  is 
inferred.  .  .  .  The  cesser  to  use,  coupled  with  any  act  clearly 
indicative  of  an  intention  to  abandon  the  right,  would  have  the  same 
effect  as  a  release,  without  any  reference  to  the  time  during  which 
such  cesser  has  continued."  And  the  text  of  the  learned  author  is 
well  supported  by  the  authorities  he  cites. 

Here,  after  an  abandonment  by  Mrs.  Higgins,  Edwin  Snell  con- 
veyed the  water  from  this  spring  to  two  houses  upon  his  own 
premises,  and,  with  the  water  running  from  the  spring  through  the 
pipes  to  those  houses,  the  premises  have  several  times  been  bought 
and  sold.  There  was  a  nonuser  of  the  easement  for  upwards  of! 
twenty  years,  and  a  substituted  easement  was  used  during  a  large 
portion  of  that  time.  i 

Under  such  circumstances,  we  think,  there  was  not  even  a  ques- 
tion of  fact  for  the  jury;  but  that  it  was  the  duty  of  the  court  to 
rule,  as  a  matter  of  law,  that  the  easement  was  extinguished. 


8l6  INCORPOREAL   INTERESTS   IN    LAND.      [PT.  IV.  CIL  IV. 

Morton,  J.,  in  BUTTERFIELD  v.   REEL). 
160  Massachusetts,  361.  —  1893. 

The  plaintiff  contends,  in  the  next  place,  that  the  grantors  were 
disseised  by  her  at  the  time  when  they  made  and  delivered  the  deed 
to  the  defendant.  But  the  nature  of  the  defendant's  right,  being  a 
right  of  flowage,  was  such  that  its  continued  existence  was  consistent 
with  the  use  and  occupation  of  the  premises  by  the  plaintiff.  There 
was  nothing  in  the  nature  of  the  acts  done  by  the  plaintff  upon  the 
premises  that  was  an  interference  with  or  adverse  to  the  right  of  the 
defendant  or  his  predecessors  in  title.  So  long  as  the  defendant  and 
his  predecessors  in  title  did  not  exercise  the  right  of  flowage,  the 
plaintiff  and  her  predecessors  in  title  were  at  libety  to  use  the  land. 
Doubtless  the  plaintiff  and  those  who  preceded  her  could  have  used 
the  premises  in  so  adverse  and  exclusive  a  mannner  that  the  lapse 
of  twenty  years  would  have  barred  the  right  of  the  defendant  and 
those  under  whom  he  claims.  But  the  use  in  the  present  case  con- 
sisted in  cutting  hay,  digging  out  muck,  enlarging  and  using  springs, 
and  occupying  a  portion  of  it  for  a  hen-house  and  hen-yard.  There 
was  nothing  in  all  this  that  was  adverse  to,  or  infringed  upon,  the 
defendant's  right.  Arnold  v.  Stevens,  24  Pick.  106;  Barnes  v.  Lloyd, 
112  Mass.  224.  The  jury,  under  instructions  not  objected  to  as  to 
what  would  constitute  an  adverse  use,  have  found  that  the  right  of 
flowage  has  not  been  lost  by  adverse  use  on  the  part  of  the  plaintiff 
and  those  under  whom  she  claims.  We  think  there  was  evidence 
warranting  such  a  finding. 

The  plaintiff  also  contends  that  the  right  of  flowage  has  been  lost 
by  abandonment.  The  right  rests  upon  an  actual  grant.  It  is  well 
settled  that  an  estate  or  easement  derived  from  an  actual  grant  is 
not  lost  by  mere  nonuse.  White  v.  Crawford,  10  Mass.  183; 
Arnold  v.  Stevens,  24  Pick.  106;  Owen  v.  Field,  102  Mass.  90,  114; 
Barnes  v.  Lloyd,  112  Mass.  224.  There  was  evidence  in  the  case  that 
the  right  had  not  been  abandoned.  It  was  for  the  jury  to  say  what 
weight  should  be  given  to  the  filling  of  the  raceway.  It  could  not 
be  said  that  the  consenting  to  it  by  the  owner  of  the  privilege  was  a 
conclusive  act  of  abandonment,  nor  that  the  putting  of  the  wheel 
into  the  wasteway  was  not  a  user  of  the  easement.  The  jury,  under 
instructions  not  otherwise  objected  to,  have  found  that  the  right 
was  not  abandoned,  and  we  think  there  was  evidence  justifying  the 
finding. 


II.  5-1  EASEMENTS.  817 

b.   Effect  of  license  to  owner  of  the  servient  estate,  or  one  acting  under 
aim,  to  interfere  with  easement. 

Peckham,  J.,  in  WHITE  v.  MANHATTAN  RAILWAY  CO. 

139  New  York,  19.  —  1893. 
[Reported  herein  at  p.  795.] 


5.   Specific  Easements. 

a.    Ways. 

(1.)  Distinguish  Ways  in  Gross  and  Highways. 

BOATMAN  v.  LASLEY. 

23  Ohio  State,  614.  —  1873. 

[Reported  herein  at  p.  810.] 


(2.)  Ways  of  Necessity. 
Nelson,  Ch.  ]..  in  HOLMES  v.  SEELY. 

19  Wendell  (N.  Y.).  507.  —  1838. 

It  is  probable  from  the  facts  in  the  case,  that  the  defendant  is 
entitled  to  a  private  way  across  the  eight-acre  lot,  from  the  Bedford 
road  to  his  small  lot,  for  agricultural  purposes  as  a  way  of  necessity. 
Lewis  McDonald  formerly  owned  both  of  these  lots,  and  in  1792  sold 
the  small  one  to  Smith,  from  whom  the  defendant  derives  his  title.  ' 
McDonald  died  in  1797,  and  the  eighty-acre  lot  fell  to  his  brother 
James,  from  whom  the  plaintiff  claims.  The  son  of  James,  who  was 
a  witness,  testified  that  there  was  no  other  way  to  the  defendant's  lot 
than  over  the  locus  in  quo.  If  this  was  the  situation  of  the  lot  at  the 
time  of  the  conveyance  to  Smith,  and  has  thus  continued  ever  since, 
a  right  of  way  followed  as  an  incident  to  the  grant.  1  Wms.  Saund. 
323,  n.  6,  to  the  case  of  Pompel  v.  Ricroft\  8  T.  R.  56;  4  Maule  & 
Selw.  393;  Cro.  Jac.  170;  Siderf.  39;  5  Taunt.  311;  Woolrych  on 
Ways,  20,  22,  291.  This  way  should  be  a  convenient  one  over  the 
adjoining  close  of  the  grantor,  due  regard  being  had  to  the  interest 
of  both  parties.  Woolrych,  23,  and  cases  there  cited.  Subject  to  I 
this  rule  it  would  seem  reasonable  that  the  grantor  should  be  allowed  / 
to  assign  such  way  as  he  could  best  spare.  Id.  2  Roll.  Abr.  60.  If 
he  decline  or  omit,  the  grantee  must  select  for  himself,  and  the 
court  would  no  doubt  extend  a  liberal  indulgence  to  the  exercise  of 

LAW  OF  PROP.   IN  LAND  —  52 


c 


818  INCORPOREAL   INTERESTS    IN    LAND.      [FT.  IV.  CM.  IV. 

his  discretion.  Nothing  short  of  evident  abuse  ought  to  invalidate 
the  one  thus  designated  and  used,  as  the  grantor  or  those  under  him 
would  be  in  fault  for  not  assigning  a  way  themselves.  But  under 
this  right,  the  party  cannot  set  up  a  claim  to  the  use  of  several  ways 
over  the  adjoining  close;  it  cannot  be  carried  beyond  the  necessity. 
This  was  strongly  exemplified  in  the  case  of  Holmes  v.  Garing,  2  Bing. 
76,  where  it  was  decided  that  a  way  of  necessity  became  extinguished 
because  the  party  could  conveniently  reach  his  lot  by  means  of  a 
close  of  his  own,  subsequently  purchased. 

In  respect  to  a  public  way,  if  there  be  an  obstruction  so  as  to 
make  the  ordinary  track  dangerous,  the  traveler  may  go  extra  viam 
passing  as  near  to  the  original  way  as  possible.  Henri s  Case,  Sir  ' 
Wm.  Jones,  297;  3  Salk.  182;  2  Show.  28.  This  rule,  generally,  is 
not  applicable  to  a  private  way  which  becomes  foundrious  or  impass- 
able, (Doug.  745,  4  Maule  &  Sel.  387,)  as  where  a  specific  way  is 
prescribed  for,  no  implication  of  a  right  arises  to  go  to  the  right  or 
left;  or  in  the  language  of  Lord  Ellenborough,  "  to  break  out  of  it 
at  random  over  the  whole  surface  of  the  close."  Highways  are  for 
the  public  service  and  if  the  usual  track  be  impassable,  the  general 
good  requires  that  there  should  be  an  outlet,  so  that  the  people  may 
at  all  times  have  a  passage.  The  better  opinion,  however,  seems  to 
be,  that  in  the  case  of  a  private  way  of  necessity,  a  passage  extra 
viam  may  be  justified  where  the  usual  track  is  obstructed.  Woolrych, 
51  Doug.  749.  There  is  a  distinction  between  private  way  by  grant 
and  one  of  necessity,  resting  upon  the  ground  that  the  one  is  a  grant 
of  specific  track  over  the  close,  while  the  other  is  a  general  right  to 
a  way  over  it;  the  one  an  express  specific  grant,  the  other  a  more 
general  implied  one.  If  the  outlet  in  case  of  obstruction  exist  at  all 
in  the  case  of  a  way  of  necessity,  it  is  clear  that  it  does  not  where  it  f 
,  could  be  avoided  by  reasonable  repairs;  and  this  duty  devolves  upon 
the  defendant.  Doug.  749.  The  burthen  falls  upon  the  party 
enjoying  the  benefit. 

The  proof  fell  altogether  short  of  establishing  a  way  by  prescrip- 
tion, for  although  there  is  some  evidence  of  a  user  for  twenty  years, 
it  is  not  confined  to  any  particular  or  specific  track.  The  right 
proved,  if  it  amount  to  anything  in  this  respect,  is  a  right  to  several 
cross  roads  over  the  greater  part  of  the  eighty-acre  lot,  for  the  proof 
of  user  applies  about  equally  to  all  of  them.  I  have  found  no 
authority  for  a  right  of  way  by  prescription  to  travel  at  random  over 
another's  close,  nor  that  such  user  is  evidence  of  a  prescriptive  right 
of  way  over  any  particular  part  of  it;  on  the  contrary  it  rather  nega- 
tives such  conclusion.  Indeed,  after  the  judge  required  the  defend- 
ant to  make  his  election  and  confine  his  defense  to  one  of  the  tracks 


II.  5-]  EASEMENTS.  819 

used  as  a  way,  I  do  not  perceive  how  the  jury  could  have  arrived  at 
the  conclusion  that  no  trespass  was  committed  upon  the  plaintiff. 
The  defendant  elected  the  way  through  the  ridge  lot,  which  may  be 
called  the  middle  route,  and  by  so  doing  would  seem  to  have  left 
confessedly  undefended  the  travel  over  all  the  others. 

If  right  in  the  foregoing  view  of  this  case,  a  new  trial  must  be 
granted,  because,  1.  Assuming  that  a  right  of  way  of  necessity 
exists,  the  defendant  did  not  confine  himself  to  it  in  passing  and 
repassing  to  and  from  his  lot;  and  2.  There  was  no  right  by  pre- 
scription established  to  justify  the  several  ways  over  the  eighty-acre 
lot  proved  to  have  been  used. 


KUHLMAN  v.  HECHT. 

77  Illinois,  570. —  1875. 

Action  of  trespass  by  Hecht  against  Kuhlman. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court:  — 

It  appears  that  the  parties  to  this  suit  own  adjoining  farms;  that 
both  farms,  at  one  time,  belonged  to  Samuel  Whiteside.  The  tract 
on  which  appellant  resides,  and  of  which  he  is  the  owner,  was 
improved,  about  thirty-five  years  since,  by  a  son  of  Samuel  White- 
side, and  he  lived  upon  the  same  until  he  sold  to  appellant,  in  1855. 
His  father  did  not  convey  the  land  to  him  until  in  1854,  and,  on  the 
same  day,  Samuel  Whiteside  conveyed  to  his  son-in-law,  Henderson, 
the  farm  on  which  he  resided,  and  which  is  now  owned   by  appellee. 

From  the  time  Ray  Whiteside  went  upon  the  farm  now  owned  by 
appell.ant,  until  a  short  time  before  this  suit  was  brought,  there  has 
always  been  an  open  lane  to  the  public  highway,  from  appellant's 
farm,  over  the  land  of  appellee.  Appellant  could  not,  at  any  time, 
get  from  his  farm  to  a  public  road  without  passing  over  the  land  of 
some  other  person.  He  had  used  this  way  from  the  time  he  pur- 
chased, until  appellee  obstructed  it  by  placing  a  gate  across  it,  a 
short  time  previous  to  the  commencement  of  this  suit.  Ray  White- 
side had  used  it,  to  get  out  from  his  farm,  from  the  time  he  settled 
upon  and  improved  it.  Previous  to  that  time,  and  afterwards  for  a 
time,  neighbors  passed  over  it,  in  going  to  Collinsville.  The  way 
was  then  only  fenced  on  one  side,  and  was  open  on  the  other,  but  it 
became  a  lane  perhaps  soon  after,  and  so  continues.  Witnesses 
testify  that  it  had  been  used  by  the  neighborhood  more  than  fifty 
years,  but  only  had  been  used  exclusively  by  the  parties  to  this  suit, 
and  their  friends,  for  the  last  fifteen  or  sixteen  years.  It  was  always 
used  by  Ray  Whiteside,  of  whom  appellant  purchased,  from  the  time 


820  INCORPOREAL   INTERESTS    IN    LAND.      [PT.  IV.  CIL  IV. 

he  went  on  the  place  until  he  sold  to  appellant;  thus  showing  a  con- 
tinuous user  by  appellant  and  his  grantor  for  full  thirty-five  years, 
and  nearly  nineteen  years  after  the  same  was  conveyed  to  Ray 
Whiteside  by  his  father,  before  it  was  obstructed  by  appellee. 

After  appellee  obstructed  the  lane,  by  erecting  a  gate  across  it, 
appellant  demanded  of  him  that  he  remove  the  obstruction,  which 
was  refused.  Thereupon,  appellant  broke  down  and  removed  the 
gate,  and  appellee  sued  him  before  a  justice  of  the  peace.  On  a 
trial  before  him,  plaintiff  recovered  a  judgment  for  $3.00.  An 
appeal  was  prosecuted  to  the  County  Court,  where  a  trial  was  had. 
with  a  similar  result.  Defendant  thereupon  appealed  to  the  Circuit 
Court.  On  the  trial  in  that  court,  on  a  bill  of  exceptions,  the  judg- 
ment of  the  County  Court  was  affirmed,  and  the  defendant  brings  tne 
case  to  this  court  by  appeal,  and  asks  a  reversal. 

There  was  not  twenty  years'  adverse  use  of  this  way,  by  appellant 
and  his  grantor,  before  this  suit  was  brought.  Ray  Whiteside  used 
and  occupied  the  farm,  under  his  father,  until  the  twenty-fifth  of 
November,  1854,  when  he  acquired  title  from  his  father.  Up  to  that 
time,  both  places  were  held  and  owned  by  the  father,  and  Ray  used 
this  way  by  the  consent,  expressed  or  implied,  of  the  father.  There 
is  no  evidence  that  he  used  it  in  his  own  right,  or  under  any  inde- 
pendent claim  of  his  own.  It  also  appears  that  the  father  and  his 
family  used  it  the  same  as  Ray  did.  There  is  nothing  appearing  in 
the  evidence  from  which  it  can  be  inferred  that  its  use  by  Ray  was 
adverse  until  he  received  the  conveyance  from  his  father;  and  after 
that,  the  adverse  enjoyment,  without  being  interrupted,  was  until  in 
July,  1873.  Thus,  it  will  be  seen  that  the  adverse  use  of  the  way 
was  less  than  nineteen  years. 

This,  then,  did  not  show  a  prescriptive  right.  Such  a  prescription 
cannot  be  acquired  short  of  twenty  years'  continuous,  uninterrupted 
adverse  enjoyment.  Where  the  use  has  been  for  that  length  of  time, 
and  it  has  been  peaceable,  the  law  presumes  a  grant;  but  if  it  lack 
in  time,  in  peaceable  enjoyment,  or  is  founded  on  a  lease,  it  will  not 
be  good,  even  if  a  greater  length  of  time  has  elapsed.  It  must  be 
founded  in  wrong.  If  one  person  enters  as  the  tenant  of  another, 
and  holds  under  him,  a  prescription  cannot  be  acquired  whilst  the 
tenant  thus  holds;  nor  will  any  portion  of  the  time  he  thus  holds  be 
counted  in  making  out  the  prescriptive  right. 

It  then  follows  that,  as  Ray  Whiteside  was  in  under  his  father,  any 
use  lie.  may  have  made  of  this  way,  whilst  he  so  held,  was  as  tenant, 
and  was  in  nowise  adverse.  It  was  a  privilege  he  enjoyed  as  his 
father's  tenant,  at  will  or  otherwise,  for  the  more  commodious 
enjoyment   of  the   farm  he    was   occupying  under  his  father.     No 


II.  5.]  EASEMENTS.  821 

portion  of  the  time  he  thus  used  this  way  can  be  counted,  as  he  did 
not  use  it  adversely,  but  subserviently  to  his  father's  title.  There 
was,  therefore,  no  prescriptive  right  shown. 

It  is,  however,  urged  that  the  use  of  this  way  was,  and  had  been 
since  Ray  Whiteside  commenced  to  occupy  the  farm,  appurtenant 
to  it,  and,  as  such,  passed  to  Ray  by  the  conveyance  from  his  father. 
Had  this  way  been  appurtenant  to  the  farm  of  the  appellant,  at  the 
time  he  purchased,  then  it  would  have  passed  by  the  grant  to  him. 
A  way  held  by  grant  or  prescription  will,  no  doubt,  pass  by  a  convey- 
ance of  the  land  with  which  it  is  used  and  enjoyed  as  an  appurte- 
nance; but  a  mere  license  to  use  a  way,  which  has  not  ripened  into  a 
right,  but  may  be  revoked,  is  not  an  appurtenance,  and  will  not  so 
pass  to  a  grantee  of  the  land.  Until  there  was  twenty  years' 
adverse  enjoyment,  Samuel  Whiteside,  as  the  owner  of  both  farms, 
could  have  revoked  the  license  expressly  or  impliedly  given,  and 
could  rightfully  have  closed  the  lane  before  he  sold  the  land  over 
which  it  ran  Hence,  this  way  was  not  appurtenant  to,  and  did  not 
pass  by,  the  conveyance  from  the  father  to  his  son,  Ray  Whiteside. 

It  is  also  urged  that  Ray  Whiteside,  after  he  purchased,  had  a  way, 
of  necessity,  over  this  land,  and  that  appellant,  by  purchasing  from 
Ray,  acquired  the  same  right,  and  hence,  appellee  purchased  of 
Samuel  Whiteside  subject  to  this  right  of  way  from  necessity;  that 
when  Samuel  Whiteside  conveyed  to  his  son,  there  was  an  implied 
grant  to  him  of  a  way  over  the  grantor's  land  to  the  farm  granted, 
that  he  might  have  ingress,  for  its  enjoyment;  and  that  we  should 
presume  it  was  intended  that  the  way  should  be  the  same  that  had 
been  used  for  the  purpose  for  perhaps  almost  forty  years.  A  way 
from  necessity  is  said  to  arise  where  the  owner  sells  land  to  another, 
which  is  wholly  surrounded  by  the  land  of  the  grantor,  and  the  pur- 
chaser has  the  right  of  way  over  the  grantor's  land,  to  arrive  at 
his  own.  3  Kent's  Com.  420.  This  is  the  rule  as  generally  stated 
by  text-writers,  and  used  in  adjudicated  cases. 

From  the  evidence  in  this  case,  it  is  manifest  that  appellant's  lands 
were  not  so  situated.  It  was  not  in  the  midst  of,  or  surrounded  by, 
the  land  of  Samuel  Whiteside,  when  he  sold  to  the  grantor  of  appel- 
lant. His  farm  adjoined  the  land  of  Samuel  Whiteside,  but  was  not 
surrounded  by  it.  It  is  true  that  Samuel  Whiteside  still  owned  land 
between  that  and  a  public  road,  and  over  which  this  lane  passed;  but 
other  persons  also  owned  lands  adjoining  the  tract  owned  by  appel- 
lant, so  that  the  facts  in  the  case  by  no  means  bring  it  within  the 
rule  as  stated  by  Kent  and  other  text-writers. 

But  the  case  of  Hawton  v.  Freeman,  8  T.  R.  50,  is  referred  to  as 
establishing    a    broader    rule,    and    one,    it    is    claimed,   which    will 


822  INCORPOREAL    INTERESTS    IN    LAND.      [PT.  IV.  CH.  IV. 

embrace  this  case.  On  turning  to  that  case,  we  find  that  it  is  based 
on  the  general  rule,  and  by  no  means  enlarges  it.  Lord  Kenyon 
says,  in  delivering  the  opinion  of  the  court,  that  he  found  it  impossi- 
ble to  distinguish  that,  from  the  general  rule,  where  a  man  grants  a 
close,  surrounded  by  his  own  land,  in  which  case  the  grantee  has  a 
way  to  it,  of  necessity,  over  the  land  ol  the  grantor,  merely  because 
the  grantor  conveyed  to  the  defendant  in  the  character  of  trustee, 
as  it  could  not  be  intended  that  he  meant  to  make  a  void  grant. 
He  says,  there  being  no  other  way  to  the  land  granted  but  over  the 
lands  of  one  of  the  persons  who  granted  to  him,  he  was  entitled  to 
a  way  of  necessity,  upon  the  authority  of  all  the  cases,  that  a  grant 
must  be  taken  most  strongly  against  the  grantor.  This  in  nowise 
enlarges  the  rule  itself,  but  only  extends  its  application  to  a  grantor 
who  was  a  mere  trustee. 

We,  after  a  careful  consideration  of  the  entire  case,  are  of  opinion 
that  appellant  has  failed  to  show  that  he  has  a  prescriptive  right  to 
the  way,  or  that  he  acquired  a  right  of  way,  as  appurtenant  to  his 
farm,  when  he  purchased  of  Ray  Whiteside,  or  that  he  acquired  or 
has  a  way  from  necessity.  He,  therefore,  failed  to  establish  a 
defense,  and  the  judgment  of  the  court  below  must  be  affirmed. 

Judgment  affirmed. 


(3.)  Repair  of  Way. 

WALKER  v.  PIERCE. 

38  Vermont,  94.  —  1865. 


Peck,  J. —  The  deed  from  the  defendant  to  the  orator,  conveying 
the  easterly  portion  of  the  building,  grants  to  the  orator  "  the  right  " 
to  use  the  common  passway  "  at  the  west  end  of  the  building,  also 
a  right  to  a  passway  therefrom  to  the  rear  of  the  portion  of  the 
building  hereby  conveyed,  to  be  forever  so  fenced  and  provided 
with  a  gateway  as  to  give  said  Walker,  his  heirs  and  assigns, 
room  to  pass  of  the  width  of  a  common  cartway  for  all  neces- 
sary and  ordinary  household  purposes,  to  the  rear  of  the  building 
herein  conveyed."  This  is  the  language  of  the  grant.  The  com- 
mon passway,  mentioned  in  the  grant,  passes  from  the  street  down 
to  the  rear  of  the  building;  and  the  other  passway  granted  passes 
from  the  common  passway  along  in  the  rear  of  the  defendant's  part 
of  the  building  to  the  rear  of  the  orator's  portion  of  the  building. 
The  two  passways,  if  they  can  be  so  called,  are  nearly  at  right  angles 
with  earli  othei  at  the  point  of  intersection.  It  might  with  more 
propriety  be   said    to   be   one  entire  passway,  turning  its  course  near 


II.  5.]  EASEMENTS.  823 

the  middle  of  it,  at  an  angle  or  sharp  curve,  about  ninety 
degrees.     *     *     * 

The  only  remaining  question  is,  whose  duty  is  it  to  grade  down 
that  way.  When  a  party  grants  a  private  way,  he  is  not  bound  by 
implication  to  construct  or  keep  in  repair  the  way  granted.  That 
duty  rests  on  the  grantee  if  he  wishes  to  enjoy  the  way,  and  he  takes 
bv  the  grant  the  right  to  do  so.  But  it  appears  in  this  case  that  the 
defendant  has  filled  up  and  raised  this  common  way  from  the  street 
to  the  rear  of  his  building  since  the  date  of  his  deed  to  the  orator, 
thereby  causing,  to  some  extent,  the  abrupt  descent  which  embar- 
rasses the  orator  in  approaching  the  rear  of  his  house  through  the 
way  in  question.  As  it  does  not  appear  affirmatively  that  the  mas- 
ter's report  and  decree  of  the  court  of  chancery  require  the  defend- 
ant to  grade  down  that  way  more  than  he  has  raised  it  since  the 
execution  of  his  deed  to  the  orator,  we  find  no  error  in  this  part  of 
the  decree.  The  defendant  objects  to  this  portion  of  the  decree 
on  the  ground  that  Anderson  owns  this  common  way  in  common 
with  the  parties  to  this  suit,  and  that  the  defendant,  by  complying  with 
the  decree,  will  trespass  upon  Anderson.  But  it  is  right,  as  between 
the  orator  and  the  defendant,  that  the  latter  should  undo  what, 
to  the  prejudice  of  the  orator,  he  has  improperly  done;  and  the 
defendant  has  a  right,  as  between  him  and  Anderson,  to  make 
necessary  and  proper  repairs.  Under  these  circumstances  this 
decree  may  properly  be  made  against  the  defendant  without  making 
Anderson  a  party.  The  view  we  take  of  the  case  destroys  the  main 
basis  on  which  the  master  awards  damage  to  the  orator.  No  subs- 
tantial damage  worth  the  cost  of  estimating  has  been  sustained,  and 
none  is  allowed. 

The  decree  of  the  court  of  chancery  is  reversed,  and  the  cause 
remanded  with  directions  to  that  court  to  enter  a  decree  for  the 
orator  only  requiring  the  defendant  to  grade  the  common  passway 
as  required  by  the  original  decree,  and  as  the  orator  fails  in  the 
main  portion  of  his  bill,  neither  party  should  recover  costs. 


(4.)  Excessive  use  of  Way. 

Eastman,  J.,  in  FRENCH  v.  MARSTIN. 

32  New  Hampshire,  316.  —  1855. 

There  is  one  ground,  however,  which  appears  to  us  to  settle  the 
present  action,  whatever  might  be  the  finding  of  the  jury  or  the  con- 
clusions of  the  court  upon  the  other  points. 

There  is  no  pretence  of  any  right  of  way  of  any  kind  having  been 
acquired  by  anyone  beyond  and  east  of  lot  54;  the  Bean  lot,  the 


824  INCORPOREAL   INTERESTS   IN    LAND.       [PT.  IV.  CH.  IV. 

Brown  lot  and  Sheafe  lots  lying  east  and  south  of  54,  and  adjoining 
thereto,  were  acquired  by  the  plaintiff  in  1847  and  1848,  and  this 
suit  was  commenced  in  1849. 

It  is  well  settled  that  if  a  person  have  a  right  of  way  over  another's 
land  to  a  particular  close,  he  cannot  enlarge  it  and  extend  it  to  other 
closes.  Com.  Dig.,  Title  Chimin,  D.  5;  Woolrych  on  Ways,  34; 
Senhouse  v.  Christian,  1  Term,  569;  Howell  v.  King,  1  Mod.  190;  Bac. 
Abr. ,  Highway,  C. ;  Davenport  v.  Lamson,  21  Pick.  72;  Comstock  v. 
Van  Deusen,  5  Pick.  166. 

In  Davenport  v.  Za/nson,  the  plaintiff  brought  trespass  against  the 
defendant  for  breaking  and  entering  his  closes,  called  the  eight-acre 
lot,  and  the  Brown  lot.  and  the  defendant  justified  under  a  right  of 
way  across  the  lots  to  a  three-acre  lot  belonging  to  him.  It  appeared 
that  the  defendant  owned  the  three-acre  lot,  and  also  a  nine-acre  lot 
purchased  by  him  subsequently  to  his  becoming  tenant  of  the  former, 
and  that  he  had  a  right  of  way  to  the  three-acre  lot.  At  the  time  of 
the  trespass  these  two  lots,  the  three-acre  and  the  nine-acre,  were 
not  separated  by  any  fence,  and  were  one  mowing  field;  and  the 
defendant,  taking  a  load  of  hay,  which  was  made  up  partly  from  each 
lot,  proceeded  from  the  three-acre  lot  across  the  plaintiff's  close; 
and  it  was  held  that  the  defendant  was  liable  for  the  trespass;  that 
he  had  no  right  to  use  the  way  as  a  way  from  the  nine-acre  lot, 
although  in  so  doing  he  passed  last  from  the  three-acre  lot  upon  the 
plaintiff's  close,  and  a  part  of  the  load  was  taken  from  the  three- 
acre  lot. 

The  doctrine  of  the  books  upon  this  question  is  undoubtedly  sound. 
If  a  right  of  way  to  one  lot  can  be  extended  at  will,  by  the  tenant, 
to  another  lot  that  may  adjoin  it,  then  may  it  be  extended  to  a  third, 
and  so  on  to  any  limits  that  the  tenant  may  choose. 

Admitting,  then,  for  the  purposes  of  this  decision,  and  for  that 
only,  that  the  defendant  had  a  right  of  way  to  lot  54,  to  the  extent 
and  in  the  manner  claimed  by  him,  and  still  he  cannot  sustain  this 
action,  for  he  was  undoubtedly  in  the  wrong  in  attempting  to  cross 
the  defendant's  close  to  go  upon  the  Brown  or  Sheafe  lot. 

The  case  finds  that,  at  the  time  of  the  alleged  assault,  the  plaintiff 
was  going  to  what  he  called  his  "  Mountain  pasture,"  which  con- 
sisted of  the  three  lots,  the  Bean,  the  Sheafe  and  the  Brown  lots,  to 
salt  his  sheep,  and  that  he  actually  went  and  called  his  sheep 
together  in  the  South  pasture,  which,  in  that  year,  was  formed  by  a 
part  of  the  Bean  lot  and  the  Sheafe  lot,  there  being  no  fence  between 
these  lots;  it  appearing,  also,  that  the  sheep  generally  ran  in  the 
BrOWD  and  Sheafe  lots. 

Now,  what  was  the  plaintiff  using  the  way  for,  when  the  defend- 


II.  5-]  EASEMENTS.  825 

ant  stopped  him?  Not  to  go  to  the  quarter  acre;  not  to  go  to  the 
Bean  lot,  and  salt  his  sheep  there;  but  to  go  to  the  "  Mountain 
pasture,"  wherever  he  might  find  his  sheep.  That  was  his  purpose, 
and  that  purpose  he  carried  into  effect.  It  cannot  be  said  that  his 
intent  was  only  to  go  to  the  quarter  acre  or  to  the  Bean  lot,  because 
the  fact  is  stated  in  the  case  to  be  otherwise.  The  case  finds  that 
the  fracas  occurred  while  the  plaintiff  was  passing  over  the  way  in 
question,  on  the  land  of  the  defendant,  to  salt  his  sheep  in  his 
Mountain  pasture.  He  claimed  the  unrestricted  right  to  go  to  the 
Mountain  pasture.  It  was  with  that  intent  that  he  entered  upon  the 
way;  to  go  to  any  part  of  the  pasture;  and  he  was  in  the  exercise  of 
a  right  which  did  not  exist  in  him  when  the  defendant  interfered; 
the  right  to  go  to  the  Mountain  pasture,  the  whole  pasture,  wherever 
the  sheep  might  be. 

We  do  not  see  how  this  case  can  be  distinguished  in  principle  from 
that  of  Davenport  v.  Lamson,  nor  indeed  from  the  general  doctrine 
upon  the  subject;  and  sufficient  matters  are  stated  in  the  case  as 
facts  to  settle  this  question  without  submitting  it  to  the  jury. 

It  does  not  relieve  the  plaintiff  that  the  defendant  did  not  resist 
his  passing,  on  the  ground  that  he  was  going  to  lots  beyond  the  Bean 
lot.  No  doubt  both  parties  understood  the  object  of  the  plaintiff, 
but  the  defendant  was  not  obliged  to  state  the  reasons  why  he 
objected.  If  he  was  in  the  wrong,  he  was  answerable;  and  if  in  the 
right,  he  was  not  called  upon  to  show  his  reason.  It  was  quite  as 
incumbent  on  the  plaintiff  to  state  that  he  was  not  going  to  the 
Mountain  pasture,  as  for  the  defendant  to  object  to  his  using  the 
way  on  that  ground. 

The  fact,  also,  that  the  defendant  had  permitted  the  sheep  to  be 
driven  over  the  way  to  the  pasture  about  a  week  before,  and  that  he 
had  been  paid  for  it,  does  not  aid  the  plaintiff.  His  going  there 
under  those  circumstances  gave  him  no  right  to  pass  over  the  way 
on  the  day  of  the  trespass,  nor  had  this  fact  any  tendency  to  show 
a  right. 

When  the  plaintiff  was  on  the  way,  using  it  for  an  unauthorized 
purpose  —  the  purpose  of  going  to  the  Mountain  pasture  to  salt  his 
sheep,  wherever  they  might  be  —  the  defendant  had  the  right  to  stop 
him. 

The  court  ordered  a  verdict  for  the  defendant;  and  upon  the  ques- 
tion which  we  have  considered,  we  think  they  were  right,  and  there 
must  be 

Judgment  on  the  verdict. 


826  INCORPOREAL   INTERESTS    IN    LAND.      [PT.  IV.  CH.  IV. 

b.   Lateral  and  subjacent  support. 

(i.)  Lateral  Support. 

GILMORE  v.  DRISCOLL. 

122  Massachusetts,  199.  —  1877. 

Gray,  C.  J.  —  The  right  of  an  owner  of  land  to  the  support  of  the 
land  adjoining  is  jure  naturce.,  like  the  right  in  a  flowing  stream. 
Every  owner  of  land  is  entitled,  as  against  his  neighbor,  to  have  the 
earth  stand  and  the  water  flow  in  its  natural  condition.  In  the  case 
of  running  water,  the  owner  of  each  estate  by  which  it  flows  has  only 
the  right  to  the  use  of  the  water  for  reasonable  purposes,  qualified 
by  a  like  right  in  every  other  owner  of  land  above  or  below  him  on 
the  same  stream.  But  in  the  case  of  land,  which  is  fixed  in  its  place, 
each  owner  has  the  absolute  right  to  have  his  land  remain  in  its 
natural  condition,  unaffected  by  any  act  of  his  neighbor;  and,  if  the 
neighbor  digs  upon  or  improves  his  own  land  so  as  to  injure  this 
right,  may  maintain  an  action  against  him,  without  proof  of 
negligence. 

But  this  right  of  property  is  only  in  the  land  in  its  natural  con- 
dition, and  the  damages  in  such  an  action  are  limited  to  the  injury 
to  the  land  itself,  and  do  not  include  any  injury  to  buildings  or 
improvements  thereon.  While  each  owner  may  build  upon  and 
improve  his  own  estate  at  his  pleasure,  provided  he  does  not  infringe 
upon  the  natural  right  of  his  neighbor,  no  one  can  by  his  own  act 
enlarge  the  liability  of  his  neighbor  for  an  interference  with  this 
natural  right.  If  a  man  is  not  content  to  enjoy  his  land  in  its  natural 
condition,  but  wishes  to  build  upon  or  improve  it,  he  must  either 
make  an  agreement  with  his  neighbor,  or  dig  his  foundations  so 
deep,  or  take  such  other  precautions,  as  to  insure  the  stability  of  his 
buildings  or  improvements  whatever  excavations  the  neighbor  may 
afterwards  make  upon  his  own  land  in  the  exercise  of  his  right. 

In  2  Rol.  Ab.  564,  it  is  stated  that  in  Wilde  v.  Minsterley,  in  15 
Car.  1,  it  was  decided  in  the  King's  Bench,  after  a  verdict  for  the 
plaintiff,  that  "  if  A.  be  seised  in  fee  of  copyhold  land  next  adjoining 
to  the  land  of  B.,  and  A.  erects  a  new  house  upon  his  copyhold  land, 
and  some  part  of  the  house  is  erected  upon  the  confines  of  his  land 
next  adjoining  to  the  land  of  B.,  and  B.  afterwards  digs  his  land  so 
near  to  the  foundation  of  A.'s  house,  but  no  part  of  A.'s  land,  that 
by  the  foundation  of  the  house  and  the  house  itself  fall  into  the 
pit ,  yel  mi  action  lies  by  A.  against  B.,  because  it  was  A.'s  own  fault 
•  he  built  his  house  so  near  the  land  of  B.,  for  he  by  his  act  can- 
not  hinder  B.  from  making  the  best  use  of  his  own  land  that  he  can. 


II.  5-]  EASEMENTS.  827 

But  it  seems  that  a  man  who  has  land  next  adjoining  to  my  land 
cannot  dig  his  land  so  near  my  land  that  thereby  my  land  shall  go 
into  his  pit;  and,  therefore,  if  the  action  had  been  brought  for  this, 
it  would  lie." 

In  the  same  court,  in  15  Car.  11,  Justices  Twisden  and  Windham 
said  that  it  had  been  adjudged  that,  "  If  I,  being  seised  of  land, 
lease  forty  feet  thereof  to  A.  to  build  a  house  thereon,  and  other 
forty  feet  to  B.  to  build  a  house,  and  one  of  them  builds  a  house, 
and  then  the  other  digs  a  cellar  in  his  land,  whereby  the  wall  of  the 
first  house  adjoining  falls,  no  action  lies  for  that,  because  each  one 
may  make  the  best  advantage  of  his  digging,"  "  but  it  seemed  to 
them  that  the  law  is  otherwise,  if  it  was  an  ancient  wall  or  house  that 
falls  by  such  digging."  Palmer  v.  Fleshees,  1  Sid.  167.  In  another 
report,  the  corresponding  statement  is  that  "  it  was  adjudged  that 
two  having  ground  adjoining,  the  one  built  de  novo,  and  the  other  in 
his  ground  digged  so  near,  that  the  other  fell,  and  no  remedy,  the 
house  being  new."     Palmer  v.  Flessier,  1  Keb.  625.      *     *     * 

There  are  indeed  two  or  three  early  cases,  in  which  actions  appear 
to  have  been  sustained  for  undermining  houses  by  digging  on  adjoin- 
ing land.  Slingsby  v.  Barnard,  14  Jac.  1,  1  Rol.  R.  430;  Smith  v. 
Martin,  23  Car.  n,  2  Saund.  400;  Barwell  v.  A'ensey,  35  Car.  11,  3 
Lev.  171;  s.  c.  1  Mod.  Entr.  195.  But  in  Slingsby  v.  Barnard,  and 
in  Smith  v.  Martin,  the  objections  made  were  not  to  the  right  to 
maintain  the  action,  but  only  to  particulars  in  the  form  of  the  decla- 
ration; and  in  Barwell  v.  Kensey  the  declaration,  as  construed  by 
the  majority  of  the  court,  alleged  not  merely  digging  near  the  plain- 
tiff's foundation,  but  digging  that  foundation  itself. 

In  Tenant  v.  Goldwin,  2  Ld.  Raym.  1089-1094,  Lord  Holt  and  Jus- 
tice Powell  are  reported  to  have  "  held  that  a  man  cannot  build  so 
near  another  man's  house  as  to  throw  it  down."  But  the  only  point 
adjudged  was  the  same  as  in  Ball  v.  Nye y  99  Mass.  582,  that  a  man 
is  bound,  of  common  right,  to  keep  a  vault  upon  his  own  land  in 
repair,  so  that  the  filth  shall  not  flow  upon  his  neighbor's  land,  "  for 
he  whose  dirt  it  is  must  keep  it  that  it  may  not  trespass."  s.  c.  1  Salk. 
360,  361;  6  Mod.  311;  1  Salk.  21;  Holt,  500.  And  upon  a  compari- 
son of  the  various  reports  it  is  evident  that  the  digging  so  near 
another's  wall  as  to  weaken  it  was  not  spoken  of  as  giving  a  right  of 
action  to  the  owner  of  the  wall,  but  as  limiting  his  liability  for  the 
escape  of  filth  caused  by  the  new  digging. 

The  latest  and  the  most  authoritative  statement  of  the  law  of 
England  upon  this  point  before  the  American  Revolution  is  that  of 
Chief  Baron  Comyns,  who,  citing  Rolle's  Abridgment  and  Sider- 
fin's  Reports,  ubi  supra,  says  that  an  action  upon  the  case  lies  for  a 


828  INCORPOREAL   INTERESTS   IN    LAND.      [PT.  IV.  CH.  IV. 

nuisance,  "  if  a  man  dig  a  pit  in  his  land,  so  near  that  my  land  falls 
into  the  pit,"  but  does  not  lie,  "  if  a  man  build  an  house,  and  makes 
cellars  upon  his  soil,  whereby  an  house  newly  built  in  an  adjoining 
soil  falls  down."  Com.  Dig.  Action  upon  the  case  for  a  Nuisance, 
A.  C. 

In  Thurston  v.  Hancock,  12  Mass.  220,  which  was  decided  in  1815, 
and  is  the  leading  American  case  on  this  subject,  the  plaintiff  in 
1802  bought  a  parcel  of  land  upon  Beacon  Hill  in  Boston,  bounded 
on  the  west  by  land  of  the  town  of  Boston;  and  in  1804  built  a  brick 
dwelling-house  thereon,  with  its  rear  two  feet  from  this  boundary, 
and  its  foundation  fifteen  feet  below  the  ancient  surface  of  the  land. 
The  defendants,  in  181 1,  took  a  deed  of  the  adjoining  land  from  the 
town,  and  began  to  dig  and  remove  the  earth  therefrom,  and,  though 
notified  by  the  plaintiff  that  his  house  was  endangered,  continued  to 
do  so  to  the  depth  of  forty-five  feet,  and  within  six  feet  of  the  rear 
of  the  plaintiff's  house,  and  thereby  caused  part  of  the  earth  on  the 
surface  of  the  plaintiff's  land  to  fall  away  and  slide  upon  the  defend- 
ant's land  and  rendered  the  foundations  of  the  plaintiff's  house 
insecure,  and  the  occupation  thereof  dangerous,  so  that  he  was 
obliged  to  abandon  it. 

The  court,  after  advisement,  and  upon  a  review  of  the  earlier  Eng- 
lish authorities,  held  that  the  plaintiff  could  recover  for  the  loss  of 
or  injury  to  the  soil  merely,  and  not  for  the  damage  to  the  house; 
and  Chief  Justice  Parker,  in  delivering  judgment,  said:  "  It  is  a 
common  principle  of  the  civil  and  of  the  common  law,  that  the  pro- 
prietor of  land,  unless  restrained  by  covenant  or  custom,  has  the 
entire  dominion,  not  only  of  the  soil,  but  of  the  space  above  and 
below  the  surface,  to  any  extent  he  may  choose  to  occupy  it.  The 
law,  founded  upon  principles  of  reason  and  common  utility,  has 
admitted  a  qualification  to  this  dominion,  restricting  the  proprietor 
so  to  use  his  own,  as  not  to  injure  the  property  or  impair  any  actual 
existing  rights  of  another.  Sic  utere  tuo  ut  alienutn  non  /cedas."  "  But 
this  subjection  of  the  use  of  a  man's  own  property  to  the  convenience 
of  his  neighbor  is  founded  upon  a  supposed  pre-existing  right  in  his 
neighbor  to  have  and  enjoy  the  privilege  which  by  such  act  is 
impaired."  12  Mass.  224.  "  A  man,  in  digging  upon  his  own  land, 
is  to  have  regard  to  the  position  of  his  neighbor's  land,  and  the 
probable  consequences  to  his  neighbor,  if  he  digs  too  near  his  line; 
and  if  he  disturbs  the  natural  state  of  the  soil,  he  shall  answer  in 
damages;  but  he  is  answerable  only  for  the  natural  and  necessary 
1  onsequences  of  his  act,  and  not  for  the  value  of  a  house  put  upon 
Or  near  the  line  by  his  neighbor."  "The  plaintiff  built  his  house 
within  two  feet  of  the  western  line  of  the  lot,  knowing  that  the  town, 


II.  5-]  EASEMENTS.  829 

or  those  who  should  hold  under  it,  had  a  right  to  build  equally  near 
to  the  line,  or  to  dig  down  into  the  soil  for  any  other  lawful  pur- 
pose. He  knew  also  the  shape  and  nature  of  the  ground,  and  that 
it  was  impossible  to  dig  there  without  causing  excavations.  He 
built  at  his  peril;  for  it  was  not  possible  for  him,  merely  by  building 
upon  his  own  ground,  to  deprive  the  other  party  of  such  use  of  his  as 
he  should  deem  most  advantageous.  There  was  no  right  acquired 
by  his  ten  years'  occupation,  to  keep  his  neighbor  at  a  convenient 
distance  from  him."  "It  is,  in  fact,  damnum  absque  injuria."  12 
Mass.  229. 

Upon  the  facts  of  that  case,  it  was  questionable  whether  the  acts 
of  the  defendant  would  not  have  caused  the  falling  away  of  the 
plaintiff's  land  if  no  house  had  been  built  thereon;  and  yet  the  court 
held  the  plaintiff  not  to  be  entitled  to  recover  any  damages  for  the 
fall  of  his  house,  without  regard  to  the  question  whether  the  weight 
of  the  house  did  or  did  not  contribute  to  the  fall  if  his  soil  into  the 
pit  digged  by  the  defendant.  No  claim  for  like  damages  was  made 
in  this  commonwealth  until  more  than  forty  years  afterwards,  when 
the  decision  in  Thurston  v.  Hancock  was  followed  and  confirmed. 
Foley  v.  Wyeih,  2  Allen,  131. 

In  Foley  v.  IVyeth,  the  court,  after  stating  that  the  right  of  support 
from  adjoining  soil  for  land  in  its  natural  state  stands  on  natural 
justice,  and  is  essential  to  the  protection  and  enjoyment  of  property 
in  the  soil,  and  is  a  right  of  property  which  passes  with  the  soil 
without  any  grant  for  the  purpose,  said:  "  It  is  a  necessary  conse- 
quence from  this  principle,  that  for  any  injury  to  his  soil,  resulting 
from  the  removal  of  the  natural  support  to  which  it  is  entitled,  by 
means  of  excavation  of  an  adjoining  tract,  the  owner  has  a  legal 
remedy  in  an  action  at  law  against  the  party  by  whom  the  work  has 
been  done  and  the  mischief  thereby  occasioned.  This  does  not 
depend  upon  negligence  or  unskilfulness,  but  upon  the  violation  of 
a  right  of  property  which  has  been  invaded  and  disturbed.  This 
unqualified  rule  is  limited  to  injuries  caused  to  the  land  itself,  and 
does  not  afford  relief  for  damages  by  the  same  means  to  artificial 
structures.  For  an  injury  to  buildings,  which  is  unavoidably  inci- 
dent to  the  depression  or  slide  of  the  soil  on  which  they  stand, 
caused  by  the  excavation  of  a  pit  on  adjoining  land,  an  action  can 
only  be  maintained  when  a  want  of  due  care  or  skill,  or  positive  neg- 
ligence, has  contributed  to  produce  it."  2  Allen,  133.  And  it  was 
accordingly  adjudged  that,  if  the  defendant  in  that  case,  by  exca- 
vating and  carrying  away  earth  on  her  own  land,  caused  the  plain- 
tiff's land  to  fall  and  sink  into  the  pit  which  she  had  dug,  she  was 
liable   for   the   injury   to   the   soil   of   the   plaintiff;  but   that,    in   the 


830  INCORPOREAL   INTERESTS    IN    LAND.      [PT.  IV.  Cll.  IV. 

absence  of  any  proof  of  negligence  in  the  execution  of  the  work,  the 
jury  could  not  take  into  consideration,  as  an  element  of  damage  for 
which  compensation  could  be  recovered,  the  fact  that  the  foundation 
of  the  plaintiff's  house  had  been  made  to  crack  and  settle,  although 
the  weight  of  his  house  did  not  contribute  to  the  sliding  or  crumbling 
away  of  the  soil.     *     *     * 

Upon  a  question  of  this  kind,  affecting  all  the  lands  in  the  com- 
monwealth, it  would  be  unjustifiable  and  mischievous  for  the  court 
to  change  a  rule  of  law  which  has  been  established  and  acted  upon 
here  for  sixty  years.  Even  in  England,  it  is  held  that  for  digging 
upon  neighboring  land,  and  thereby  causing  the  plaintiff's  land  to 
sink  and  his  building  to  fall,  although  the  jury  find  that  the  land 
would  have  sunk  if  there  had  been  no  building  upon  it,  yet  no  action 
will  lie,  if  no  appreciable  damage  is  proved  to  the  land  without  the 
building.      Smith  v.   Thackerah,  L.  R.  1  C.  P.  564. 

The  weight  of  American  authority  is  in  accordance  with  the 
decisions  of  this  court.  It  has  generally  been  considered  that  for  an 
excavation  causing  an  injury  to  the  soil  in  its  natural  state  an  action 
would  lie;  but  that,  without  proof  of  a  right  by  grant  or  prescription 
in  the  plaintiff,  or  of  actual  negligence  on  the  part  of  the  defendant, 
no  action  would  lie  for  an  injury  to  buildings  by  excavating  adjoin- 
ing land  not  previously  built  upon.  Panton  v.  Holland,  17  Johns. 
92;  Lasala  v.  Ho/brook,  4  Paige,  169;  Hay  v.  Cohoes  Co.,  2  Comst. 
159,  162;  McGuire  v.  Grant,  1  Dutcher,  356;  Richart  v.  Scott,  7 
Watts,  460;  Richardson  v.  Vermont  Central  Railroad,  25  Vt.  465; 
Beard  v.  Murphy,  37  Vt.  99,  102;  Shrieve  v.  Stokes,  8  B.  Mon.  453; 
Charless  v.  Rankin,  22  Mo.  566. 

It  is  difficult  to  see  how  the  owner  of  a  house  can  acquire  by  pre- 
scription a  right  to  have  it  supported  by  the  adjoining  land,  inasmuch 
as  he  does  nothing  upon  land  has  no  use  of  that  land,  which  can  be 
seen  or  known  or  interrupted  or  sued  for  by  the  owner  thereof,  and 
therefore  no  assent  of  the  latter  can  be  presumed  to  the  acquirement 
of  any  right  in  his  land  by  the  former.  The  English  cases  are 
founded  on  an  analogy  to  the  doctrine  of  ancient  lights,  which  is  not 
in  force  in  this  country.  Hide  v.  Thornborough,  2  Car.  &  K.  250, 
255,  and  Stansell  v.  follard,  there  cited;  Solomon  v.  Vintners'  Co.,  4 
H  &  \.  585,  599,  602;  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  385, 
386;  Greenleaf  x .  Francis,  t8  Pick.  117,  122;  Keats  v.  Hugo,  115  Mass. 
204,  215;  Richart  v.  Scott,  7  Watts,  460,  462;  Napier  v.  Bulwinkle,  5 
Rich.  311,  324.  But  this  case  does  not  require  us  to  determine  that 
question,  because  there  is  no  evidence  that  the  structures  and 
improvements  upon  the  plaintiff's  land  have  been  there  for  twenty 
years. 


II.  5-]  EASEMENTS.  831 

Nor  is  it  necessary  to  consider  whether  negligence  on  the  part  of 
the  defendant  could  enlarge  the  measure  of  his  liability;  because  the 
case  stated  does  not  find  that  he  was  negligent,  nor  set  out  any  facts 
from  which  actual  negligence  can  be  inferred.  The  cause  of  action 
is  that  the  plaintiff  has  an  absolute  right  to  have  her  soil  stand  in 
its  natural  condition,  and  that  any  one  who  injures  that  right  is  a 
wrongdoer,  independently  of  any  question  of  negligence.  Foley  v. 
Wyeth,  2  Allen,  131,  133;  Hay  v.  Cohoes  Co.,  2  Comst.  159,  162? 
Richardson  v.  Vermont  Central  -Railroad,  25  Vt.  465,  471;  Humphries 
v.  Brodgen,  12   Q.  B.  739. 

The  fact  that  the  defendant  was  not  the  owner  of  the  adjoining 
land  affords  him  no  exemption.  It  was  never  considered  necessary, 
in  an  action  of  this  kind  to  allege  that  the  defendant  owned  or 
occupied  the  land  on  which  the  digging  was  done  that  injured  the 
plaintiff's  soil.  Smith  v.  Martin,  2  Saund.  400,  and  note;  Nicklin 
v.  Williams,  10  Exch.  259.  Even  an  agent  of  the  owner  of  the 
adjoining  land  would  be  liable  for  his  own  negligence  and  positive 
wrongs;  for  his  principal  could  not  confer  upon  him  any  authority  to 
commit  a  tort  upon  the  property  or  the  rights  of  another.  Bell  v.  Jos- 
selyn,  3  Gray,  309;  Story  on  Agency,  §  311.  And,  upon  the  case 
stated,  the  defendant  appears  not  to  have  been  an  agent  of  the  owner 
of  the  land,  but  to  have  removed  the  soil  therefrom  for  his  own  bene- 
fit, by  permission  of  Gillighan,  who  had  a  like  agreement  with  and 
license  from  the  owner;  and  it  is  at  least  doubtful  whether  the  owner 
of  the  land  could  be  held  responsible  for  the  defendant's  acts. 
Gayford  v.  Nicholls,  9  Exch.  702  ;  Hilliard  v.  Richardson,  3  Gray,  349. 

The  case  finds  that  the  defendant  ceased  his  work  towards  the  end 
of  October,  and  left  the  bank  in  such  a  shape  that  by  the  effect  of 
rains  and  frost  it  was  rendered  insufficient  to  hold  the  soil  of  the 
plaintiff  in  its  natural  condition,  and  began  to  give  way  at  once, 
although  the  plaintiff's  soil  was  not  actually  disturbed  till  the  month 
of  March  following.  The  necessary  inference  is  that  by  the  opera- 
tion of  natural  and  ordinary  causes  upon  the  land  as  it  was  left  by 
the  excavations  of  the  defendant,  and  which  he  took  no  precaution 
to  guard  against,  part  of  the  soil  of  the  plaintiff's  land  slid  and  fell 
off;  and  for  the  injury  so  caused  to  her  soil  this  action  may  be  main- 
tained. But  she  cannot  maintain  an  action  for  the  injury  to  her 
fences  and  shrubbery,  because  her  natural  right  and  her  correspond- 
ing remedy  are  confined  to  the  land  itself,  and  do  not  include  build- 
ings or  other  improvements  thereon.     *     *     * 

Judgment  for  plaintiff. 


832  INCORPOREAL    INTERESTS    IN    LAND.       [PT.  IV.  CH.  IV. 

(2.)  Subjacent  Support. 

MARVIN  v.   BREWSTER  IRON  MINING  CO. 


55   New  York,  538.  —  1874. 

Folger,  J.  —  The  ultimate  principles  upon  which  the  decision 
of  this  case  should  rest,  are  not  undetermined  nor  obscure.  The 
relative  rights  and  duties  of  owners  of  superjacent  lands,  and  of 
subjacent  minerals,  have  been  much  discussed  and  passed  upon. 
Then,  too,  the  position  of  adjacent  owners  of  land  is  an  analogous 
one,  and  the  rules  which  have  been  laid  down,  as  to  them,  and  often 
enforced,  throw  light  upon  the  questions  arising  here.     *     *     * 

A  reserve  of  minerals  and  mining  rights,  is  construed  as  is  an 
actual  grant  thereof.  It  differs  not,  whether  the  right  to  mine  is  by 
an  exception  from  a  deed  of  the  surface,  or  by  a  grant  of  the  mine 
by  the  owner  of  the  whole  estate,  therein  reserving  to  himself  the 
surface.  Shep.  Touch.  100;  Dand  v.  Kingscole,  6  M.  &  W.  174; 
Williams  v.  B agnail,  15  Week.  R.  272;  see  Wickham  v.  Hawker,  7 
M.  &  W.  78;  and  comment  thereon  in  Proud  v.  Bates,  34  L.  J. 
Chanc.  — ,  406;  s.  c.  5  Am.  Law  Reg.  N.  S.  171-174.  A  reservation 
of  minerals  and  mining  rights  from  a  grant  of  this  estate,  followed 
by  a  grant  to  another  of  all  that  which  was  first  reserved,  vests  in 
the  second  grantee  an  estate  as  broad  as  if  the  entire  estate  had  first 
been  granted  to  him,  with  a  reservation  of  the  surface.  Arnold x. 
Stevens,  24  Pick.  106.  Though  a  reservation  is  to  be  construed  most 
strictly  against  the  grantor,  still  there  will  be  retained  in  him  all 
that  it  was  the  clear  meaning  and  intention  of  the  parties  to  reserve 
from  the  conveyance.  Harris  v.  Ryding,  5  M.  &  W.  60;  per  Parke, 
B.  p.  70.  These  observations  are  made  necessary,  by  positions 
taken  and  urged  on  the  argument  by  the  learned  counsel  for  the 
plaintiff.  And  here  is  a  fit  place  to  notice  Hilton  v.  Ld.  Granville, 
5  Q.  B.,  48  E.  C.  L.  R.  701,  much  relied  upon  by  him,  in  that  it  held 
that  there  cannot  be  reserved  in  a  grant  that  which  will  deprive  the 
grantee  of  the  enjoyment  of  the  whole  thing  granted,  and  that  a 
clause  to  that  effect  must  be  rejected  as  absurd  and  repugnant,  has 
in  that  respect  been  from  time  to  time  much  questioned,  and  finally 
in  effect  overruled.  Rowbotham  v.  Wilson,  8  H.  of  L.  Cases,  348; 
Duke  of  />.  v.  Wakefield,  1>.  Rep.  4  H.  of  L.  377;  and  see  Hext  v. 
Gill,  supra,  700-716.      *      *      * 

The  plaintiff  acquired,  as  a  right  of  property,  that  there  should  be 
left  of  the  minerals,  in  their  place  under  the  land,  sufficient  to 
support  the  surface  in  its  natural  state.  This  was  the  extent  of  his 
right  to  subjacent  support,  there  being  no  buildings  upon  the  land 
when  Parks  conveyed  to  Downs,  nor  the  erection  of  any,  one  of  the 


II.  5- J  EASEMENTS.  833 

purposes  in  their  contemplation.  Cat.  R.  IV.  Co.  v.  Sprot,  supra. 
The  defendant  lays  stress  upon  the  small  consideration  given  for  the 
land.  The  right  to  support  is  without  regard  to  the  comparative 
value  of  the  strata.  Humphries  v.  Brogden,  12  Q.  B.  739.  This 
right  to  sufficient  subjacent  support  is  likened  sometimes  to  that  to 
have  lateral  support  to  land.  In  that  case,  all  which  can  be  claimed 
is,  that  the  adjacent  owner  shall  not  so  dig  upon  his  land  as 
that  of  his  neighbor  shall  fall  into  his  pit.  If  the  weight  of  the 
buildings,  of  late  erected  by  his  neighbor  on  his  land,  causes  it  to 
slide,  when  of  its  own  weight  it  would  not,  there  is  no  claim  for 
redress.  Lasala  v.  Holbrook,  4  Paige,  169.  Is  it  not  the  same  rule, 
that  whatever  an  adjacent  owner  can  do  upon  or  in  his  own  land, 
confined  within  that,  and  necessary  for  the  convenient  and  beneficial 
enjoyment  of  it,  which  works  no  physical  injury  to  his  neighbor's 
possession  in  its  natural  state,  he  may  do  without  liability  to  his 
neighbor,  although  it  may  work  physical  injury  to  a  building  lately 
erected  thereon  by  his  neighbor?  For  in  Humphries  v.  Brogden,  supra, 
the  reason  is  given,  that  an  owner  cannot  by  putting  an  additional 
weight  upon  his  own  land,  and  so  increasing  the  lateral  pressure 
upon  his  neighbor's  land,  render  unlawful  any  operation  thereon 
which  before  would  have  caused  no  damage.  Is  this  exemption 
from  liability  confined  to  a  case  of  lateral  pressure?  If  he  may  so  dig 
as  that  the  building  shall  topple  down,  and  not  be  liable  so  long  as 
that  but  for  the  building,  the  earth  would  not  have  fallen  in;  may  he 
not  so  blast  in  digging  as  that  the  building  shall  shake,  crack  and 
crumble,  without  giving  cause  of  action,  so  long  as  that  the  surface 
of  his  neighbor's  ground  is  not  injured  or  disturbed,  though  it  be 
shaken?  He  is  not  bound  to  support  the  building,  so  long  as  he 
affords  a  support  sufficient  for  the  soil  without  the  building.  He  is 
not  bound  to  refrain  from  digging  in  his  own  land,  so  soon  as  he 
comes  near  the  limit  of  support  for  his  neighbor's  building,  not  an 
ancient  one.  He  is  not  bound  to  be  circumspect  in  his  means  of 
digging,  so  long  as  they  do  not  affect  badly  his  neighbor's  land.  Is 
he  bound  to  refrain  from  the  use  of  the  means  which  do  not  injure 
his  neighbor's  land,  for  that  they  badly  affect  a  modern  house 
thereon?  In  our  judgment  he  is  not.  See  Smith  v.  Thackerah,  Law 
Rep.  1  C.  P.  564.  Whatever  it  is  necessary  for  him  to  do  for  the 
profitable  and  beneficial  enjoyment  of  his  own  possession,  and  which 
he  may  do- with  no  effect  to  the  adjacent  surface  in  its  natural  state, 
that  he  may  do  though  it  harm  erections  lately  put  thereon.  As  the 
rights  and  relations  of  adjacent  owners  and  those  of  superjacent  and 
subjacent  owners  are  alike,  so  may  the  subjacent  owner  do  beneath 
the  surface  what  the  adjacent  owner  may  do  beside  it.    And  where,  as 

LAW  OF  PROP.   IN  LAND  —  53 


834  INCORPOREAL  INTERESTS  IN  LAND.     [PT.  IV.  CH.  IV. 

in  Harris  v.  Ryding t  supra,  learned  judges  of  the  subjacent  owner  not 
being  entitled  to  let  down  the  surface  or  injure  the  enjoyment  of  it, 
they  mean  the  surface  in  its  natural  state,  and  not  with  additions  to 
it  in  buildings  not  ancient.  And  see  Partridge  v.  Scott,  3  M.  & 
W.  220. 


c.  'Party-walls. 

BROOKS  v.  CURTIS. 
50  New  York,  639.  —  1872. 


Rapallo,  J.  —  The  deed  from  Everard  Peck  to  the  plaintiff  states 
that  the  wall  in  controversy  was,  at  the  time  of  the  conveyance, 
being  erected  by  Peck,  as  the  west  wall  of  a  block  of  stores.  The 
centre  line  of  the  wall  is,  by  the  deed,  made  the  easterly  boundary 
of  the  land  conveyed,  which  includes  the  land  on  which  the  westerly 
half  of  the  wall  stands.  It  appears  that  Peck's  stores  were  after- 
ward completed,  and  the  plaintiff  erected  a  building  upon  his  own 
lot,  using  the  wall  as  a  party-wall,  and  inserting  in  it  the  joists  of 
his  building.  Peck  afterward  conveyed  to  the  defendant,  who  made 
the  addition  to  the  height  of  the  wall. 

We  think  that  the  language  of  the  deed  and  the  acts  of  the  parties 
show  that  it  was  their  intention  that  the  wall  should  be  a  party-wall 
for  the  common  use  of  both  lots.  The  deed  states  that  Peck  was 
at  the  time  erecting  the  wall,  half  of  which  was  conveyed,  and  that 
it  was  to  be  the  west  wall  of  his  block.  This  implies  that  the  wall 
was  not  then  completed,  and  that  Peck  was  to  have  the  right  to 
complete  it  and  use  it  as  the  west  wall  of  his  block.  If  the  deed  is 
to  be  treated  as  an  absolute  conveyance,  free  from  any  reservation, 
easement  or  privilege  in  the  co-owner  of  the  wall,  Peck  would  have 
had  no  right  to  proceed  to  complete  it,  or,  at  least,  that  part  which 
was  beyond  his  line,  after  the  conveyance.  It  cannot  be  supposed 
that  any  such  was  the  intention  of  the  parties.  Subsequently  to  this 
conveyance  the  wall  had  been  used  for  more  than  twenty  years  as  a 
party-wall. 

Although  land  covered  by  a  party-wall  remains  the  several  prop- 
erty of  the  owner  of  each  half,  yet  the  title  of  each  owner  is  qualified 
by  the  easement  to  which  the  other  is  entitled  ;  and  an  important 
question  in  this  case  is  whether  such  easement  includes  the  right  to 
increase  the  height  of  the  wall,  provided  such  increase  can  be  made 
without  detriment  to  the  strength  of  the  wall  or  to  the  property  of 
tin-  adjacent  owner. 

This  question,  in  the  absence  of  statutory  regulations  upon  the 


II.  5-]  EASEMENTS.  835 

subject,  does  not  seem  to  have  been  distinctly  settled  by  authority; 
but  the  fact  appears  in  several  of  the  cases  relating  to  party-walls 
that  the  height  has  been  increased,  and  there  is  no  intimation  that 
such  increase  was  unlawful.  Watt  v.  Hawkins,  5  Taunton,  20,  was 
an  action  of  trespass.  The  plaintiff  had  added  to  the  height  of  a 
party-wall,  and  the  defendant  tore  down  the  addition,  for  which 
injury  the  plaintiff  brought  trespass.  The  only  point  decided  was 
that  the  parties  were  not  tenants  in  common  of  the  land,  and  there 
fore  the  action  of  trespass  could  be  maintained.  In  Campbell  v. 
Mesier,  4  Johns.  Ch.  334,  a  party- wall,  standing  equally  on  two  lots, 
having  become  ruinous,  the  owner  on  one  side,  against  the  will  and 
in  spite  of  the  prohibition  of  the  adjacent  owner,  pulled  down  the 
wall  and  rebuilt  it  higher  than  it  was  originally.  It  was  held  that 
the  adjacent  owner  was  bound  to  contribute  to  the  expense  of  the 
new  wall,  but  not  to  the  extra  expense  of  making  it  higher  than  the 
old.  There  is  no  intimation  in  the  case  that  the  increase  of  height 
was  wrongful.  In  Partridge  v.  Gilbert,  15  N.  Y.  601,  the  new  wall 
built  by  the  defendant  was  not  only  higher,  but  its  foundations  were 
deeper,  than  the  old  wall  which  it  replaced.  The  right  to  make 
these  additions  was  not,  however,  discussed  in  the  case,  and  perhaps 
there  was  no  occasion  to  discuss  it;  the  action  being  brought  by  the 
tenant  of  the  adjacent  lot,  whose  goods  were  injured  in  making  the 
repair,  and  not  by  the  owner. 

In  Eno  v.  Del  Vecchio,  4  Duer,  53,  it  was  held  that  the  owner  on 
one  side  of  a  party-wall  might,  for  the  purpose  of  improving  his  own 
premises,  underpin  the  foundation  of  the  wall  and  sink  it  deeper  if 
he  could  do  so  without  injury  to  the  building  on  the  adjoining  lot; 
also,  that  he  might  increase,  within  the  limits  of  his  own  lot,  the 
thickness,  length  or  height  of  the  wall,  if  he  could  do  so  without 
injury  to  the  building  on  the  adjoining  lot.  Whether  he  could  raise 
the  whole  party-wall  higher  or  whether  any  additional  elevation 
must  be  wholly  within  the  limits  of  his  own  lot,  the  court  expressly 
declined  to  decide. 

We  think  that  the  right  of  either  of  the  adjacent  owners  to  increase 
the  height  of  a  party-wall,  when  it  can  be  done  without  injury  to 
the  adjoining  building,  and  the  wall  is  clearly  of  sufficient  strength 
to  safely  bear  the  addition,  is  necessarily  included  in  the  easement. 
No  adjudication  adverse  to  that  right  has  been  referred  to  by  counsel 
nor  found  by  us.  The  party  making  the  addition  does  it  at  his  peril; 
and  if  injury  results  he  is  liable  for  all  damages.  He  must  insure 
the  safety  of  the  operation.  But  when  safe  it  should  be  allowed. 
The  wall  is  devoted  to  the  purpose  of  being  used  for  the  common 
benefit  of  both  tenants.      In  Hendricks  v.   Stark,  37   N    Y.  106,  it  is 


836  INCORPOREAL  INTERESTS  IN  LAND.     [PT.  IV.  CII.  IV. 

held  that  a  party-wall  is  in  no  sense  a  legal  encumbrance  upon  either 
property;  that  the  mutual  easements  of  adjoining  proprietors  in  such 
walls  are  a  mutual  benefit  to  each,  and  not  a  burden,  but  a  valuable 
appurtenant  which  passes  with  the  title  to  the  property.  This  is 
undoubtedly  correct,  provided  each  party  is  allowed  to  derive  from 
the  wall  all  the  benefit  which  it  is  capable  of  affording  without  detri- 
ment to  the  other.  But  if,  though  of  sufficient  strength,  it  cannot 
be  used  by  either  party  in  increasing  the  height  of  his  building,  it 
may  prove  a  serious  injury  to  the  property  of  one  desiring  to  make 
that  improvement;  an  improvement  which  is  very  usual  and  often 
very  necessary  in  crowded  cities.  The  fairer  view,  and  the  one 
generally  adopted  in  legislative  provisions  on  the  subject  in  this  and 
other  countries,  is  to  treat  a  party-wall  as  a  structure  for  the  com- 
mon benefit  and  convenience  of  both  of  the  tenements  which  it 
separates,  and  to  permit  either  party  to  make  any  use  of  it  which 
he  may  require,  either  by  deepening  the  foundation  or  increasing 
the  height,  so  far  as  it  can  be  done  without  injury  to  the  other. 
The  party  making  the  change,  when  not  required  for  purposes  of 
repair,  is  absolutely  responsible  for  any  damage  which  it  occasions 
(Eno  v.  Del  Vecchio,  6  Duer,  17);  but  in  so  far  as  he  can  use  the  wall 
in  the  improvement  of  his  own  property,  without  injury  to  the  wall 
or  the  adjoining  property,  there  is  no  good  reason  why  he  should 
not  be  permitted  to  do  so.1 


d.   Easements  in  water. 

GARWOOD  v.  N.  Y.   CENT.   &  HUD.   R.   R.   R.   CO. 

83  New  York,  400.  — 1881. 

[Reported  herein  at  p.  116.] 


Sheplev,  J.,  in  HEATH  v.  WILLIAMS. 

25  Maine.  209.  —  1S45. 

[Reported  herein  at  p.  120.] 


CORNING  v.  TROY  IRON  &  NAIL  FACTORY. 

40  New  York,  191.  —  1869. 
[Reported  herein  at  p.  121.  ]8 

'  Division  or  "  line  "  fences  resemble  "  party  walls  "  in  some  respects.  Their 
construction  and  maintenance  are  usually  regulated  by  statute,  however.  For 
the  New  York  statutes,  see  "  The  Town  Law,"  ^^  100-108.  —  En. 

'  See  also  Curtis  v.  Ayrault,  supra,  p.  126;  Ocean  Grove  Ass'n.  v.  Asbury  Park, 
tupra,  ]>.  130,   Delhi  v.    Youinans,  supra,  p.  133.  —  Ed. 


II.  5-]  EASEMENTS.  837 

e.  Rights  to  flow  lands. 

EATON  v.  B.   C.   &.   M.   R.   R. 

51  New  Hampshire,  504.  —  1872. 

[Reported  herein  at  p.   1.] 


THE  B.  &  M.   HYDRAULIC  CO.  v.  BUTLER. 

91  Indiana,  134.  —  1883. 

[Reported  herein  at  p.  141.] 


f.   Easements  of  light  and  air. 

The  Chancellor  in  ROBESON  v.   PITTENGER. 

2  New  Jersey  Equity,  57.  —  1838. 

The  object  of  this  bill  is  to  restrain  the  defendant  from  obstruct- 
ing the  light  and  air  of  a  building  belonging  to  the  complainants. 
When  the  bill  was  presented,  I  granted  the  injunction  with  much 
reluctance,  without  notice;  and  I  did  so  from  the  pressing  character 
of  the  case,  as  the  defendant  was  actually  at  work  erecting  the  very 
obstruction  complained  of  I  am  now  furnished  with  the  briefs  of 
the  counsel  of  the  respective  parties,  on  a  motion  to  dissolve  the 
injunction  upon  the  case  made  by  the  bill,  and  shall  consider  the 
same  without  prejudice,  as  if  the  propriety  of  the  interference  of 
the  court  was  now,  for  the  first  time,  considered.  I  am  not  aware 
that  this  question  has  ever  been  decided  in  New  Jersey,  and  it  has 
caused  me  some  anxiety  to  determine,  not  so  much  what  views  have 
been  taken  by  other  judges  and  in  other  countries,  of  the  question, 
but  what  should  be  the  course  of  decision  in  this  State,  and  particu- 
larly in  a  country  under  a  rapidly  increasing  state  of  improvement. 
It  would  seem  unreasonable,  that  in  those  places  where  land  is  cheap, 
and  the  country  thinly  settled,  a  party,  after  being  permitted  to 
build  his  house  and  place  his  windows  on  the  side  adjoining  the  open 
field  of  another  man,  and  especially  after  so  long  a  possession  as  to 
presume  a  grant  for  that  purpose,  should  have  them  obstructed  by 
the  erection  of  a  wall  or  another  building,  when  perhaps  a  little 
accommodation,  by  placing  the  new  building  a  few  feet  further  off, 
might  work  no  injury  to  anybody;  and  yet  in  populous  cities,  where 
land  is  very  valuable,  and  it  is  the  constant  practice  to  place  build- 
ings side  by  side,  the  enforcement  of  the  same  rule  might  work  great 
inconvenience   and    injustice.      The   difficulty,    therefore,    is   to   lay 


838  INCORPOREAL  INTERESTS  IN  LAND.     [PT.  IV.  CH.  IV. 

down  one  rule  for  all  cases.  Nor  will  it  do  to  leave  all  parties  to 
their  remedy  at  law.  That  would  be  shutting  up  the  doors  of  a 
court  of  equity,  when  the  exercise  of  its  legitimate  powers  is  most 
needed.  Cases  might  arise  where  damages  would  be  no  adequate 
compensation  for  the  injury  sustained,  and  the  party  unable  to 
respond  in  damages  at  all. 

The  cases  in  the  English  courts  are  numerous  in  which  damages 
at  law  have  been  recovered  for  obstructing  lights,  and  where  injunc- 
tions have  been  issued  to  prevent  such  obstructions.  The  law  is  there 
well  settled,  and  of  long  standing.  In  1  Levinz's  Rep.  122,  the  case 
of  Palmer  v.  Fletcher,  there  is  an  early  and  important  decision  on 
this  subject.  This  was  a  case  at  law.  A  man  built  a  house  on  his 
own  lands  and  then  sold  the  house  to  one  man,  and  the  land  adjoining 
to  another,  who  obstructed  the  windows  of  the  house  by  piles  of 
timber.  This  house  had  been  recently  built,  yet  the  actio;")  was  sus- 
tained. The  judges  differed  as  to  what  would  have  been  the  result 
had  the  man  sold  the  vacant  lot  first,  seeing  the  building  had  been 
recently  erected;  but  all  agreed  that  if  a  stranger  had  owned  the 
adjoining  lands,  he  might  obstruct  the  lights  of  a  newly  erected 
building,  but  not  of  an  ancient  building  so  that  he  has  gained  a  right 
in  the  lights  by  prescription. 

In  1  Comyn's  Digest,  title,  "  Action  on  the  Case  for  a  Nuisance," 
A.,  the  cases  are  cited  in  which  actions  on  the  case  for  a  nuisance 
have  been  allowed.  If  a  man  erect  a  house  or  mill  to  the  nuisance 
of  another,  every  occupier  afterwards  is  subject  to  an  action  for  the 
nuisance. 

In  the  case  of  Rosewell  v.  Pryor,  6  Modern,  116,  the  question  was, 
whether  in  a  declaration  for  stopping  the  plaintiff's  lights,  it  was 
necessary  to  state  the  lights  and  messuage  as  being  ancient,  and  it 
was  held  not  to  be  necessary.  In  that  case,  Holt,  Chief  Justice, 
says:  "  If  a  man  have  a  vacant  piece  of  ground,  and  build  there- 
upon, and  that  house  has  very  good  lights,  and  he  lets  this  house  to 
another,  and  after  he  builds  upon  a  contiguous  piece  of  ground,  or 
lets  the  ground  contiguous  to  another,  who  builds  thereupon  to  the 
nuisance  of  the  lights  of  the  first  house,  the  lessee  of  the  first  house 
shall  have  an  action  upon  the  case  against  such  builder,  for  the  first 
house  was  granted  to  him  with  all  the  easements  and  the  lights  then 
belonging  to  it." 

This  general  principle  is  also  stated  in  3  Bl.  Com.  217,  where  it  is 
declared  to  be  essential  to  the  maintenance  of  the  action,  that  the 
windows  be  ancient.  The  English  cases  are  uniform  on  this  sub- 
ject; and  Chancellor  Kent,  in  3  Kent's  Com.  445,  declares  in  gen- 
eral terms,  that  "  according  to  the  English  law,  the  owner  of  a  house 


II.  5-]  EASEMENTS.  839 

will  be  restrained  by  injunction,  and  he  will  be  liable  to  an  action 
on  the  case,  if  he  makes  any  erections  or  improvements,  so  as  to 
obstruct  the  ancient  lights  of  an  adjoining  house." 

In  our  own  country,  too,  the  same  doctrines  have  been  maintained; 
and  I  do  not  perceive  that  Chancellor  Kent,  in  his  Commentaries 
above  referred  to,  denies  anywhere  that  the  same  rules  of  law  on 
this  subject  apply  in  this  country,  except  in  a  note,  where  he  declares 
that  this  common-law  prescription  does  not  reasonably  or  equitably 
apply  to  buildings  on  narrow  lots  in  the  rapidly  growing  cities  in  this 
country,  and  upon  the  ground  that  such  was  not  the  presumed 
intention  of  the  owners  of  such  lots.  From  all  he  says,  I  infer  that 
he  recognizes  the  general  principles  before  stated  as  in  force  in  this 
country,  but  exempts  the  case  of  city  lots,  from  the  necessity  and 
reason  of  the  thing,  as  necessary  for  their  advancement  and  con- 
tinued improvement. 

The  case  of  Story  v.  Odin,  in  12  Mass.  157,  is  a  very  clear  and  plain 
decision  in  our  own  courts.  The  property  was  situated  in  the  town 
of  Boston.  The  building  was  purchased  of  the  town  in  1795,  and 
stood  adjoining  other  lands  of  the  town,  with  lights  looking  out 
directly  upon  this  vacant  land.  In  1812,  the  town  sold  this  vacant 
lot,  and  the  purchaser  built  directly  adjoining  the  plaintiff's  build- 
ing, and  obstructed  his  lights.  The  court  decided,  that  as  the  pur- 
chaser of  the  first  building  bought  without  reserving  to  the  grantors 
any  right  to  build  on  the  adjoining  ground  so  as  to  interfere  with 
his  lights,  they  could  not,  nor  could  their  grantees,  build  so  as  to 
interfere  with  this  right.      *     *     * 

From  a  careful  examination  of  the  cases,  and  the  principles  on 
which  they  are  decided,  I  have  come  to  the  conclusion  that  the  same 
rules  which  have  been  established  in  the  English  courts,  and  in  other 
states  of  the  union,  upon  this  subject,  apply  with  the  same  force  to 
us,  and  that  there  is  nothing  in  our  condition  which  can  prevent 
their  wholesome  application;  that,  as  a  general  rule,  in  a  case  of 
ancient  lights,  where  they  have  existed  for  upwards  of  twenty  years 
undisturbed,  the  owner  of  the  adjoining  lot  has  no  right  to  obstruct 
those  lights,  and  particularly  so,  if  the  adjoining  lot  was  owned  by 
the  man  who  built  the  house  at  the  time,  and  subsequently  sold  by 
him;  and  that,  whether  this  court  will  interfere  by  injunction,  or 
leave  the  party  to  establish  his  right  at  law,  must  depend  on  the 
particular  circumstances  of  each  case.     *     *     * 

I  am  very  clear  the  injunction  ought  not  to  be  dissolved,  and  that 
upon  all  the  authorities  cited.  The  case  is  a  very  strong  one.  The 
builder  of  this  house  owned  both  lots  at  the  time  of  erecting  the 
building.     The  lights  are  ancient,  having  continued  unmolested  for 


840  INCORPOREAL  INTERESTS  IN   LAND.     (  I'T.  [V.  CH.  IV. 

thirty-five  years.  Lot  No.  10,  on  which  the  house  stands,  passed 
out  of  the  hands  of  the  heirs  at  law  of  the  original  owner  first;  and 
there  is  no  pressing  necessity  for  this  interference  with  the  estab- 
lished rights  of  the  complainants. 


HUBBARD  v.  TOWN. 
33  Vermont,  295.  — 1860. 


Pierpoint,  J. — This  action  is  brought  to  recover  the  damage 
claimed  to  have  been  sustained  by  the  plaintiff  in  consequence  of 
the  defendant's  obstructing  his  lights.  It  appears  from  the  case 
that  the  building,  which  has  been  owned  and  occupied  by  the  plain- 
tiff and  his  tenants  for  more  than  twenty-five  years  prior  to  the  acts 
complained  of,  stands  upon  the  line  between  his  premises  and  the 
premises  of  the  defendant,  and  that  the  defendant  has  owned  and 
occupied  his  premises  during  the  aforesaid  period;  that  the  windows 
in  the  plaintiff's  building  opened  out  toward  the  premises  of  the 
defendant,  admitting  light  from  that  direction,  and  that  they  have 
so  remained  without  obstruction  and  without  question  on  the  part 
of  the  defendant,  for  the  period  of  twenty-five  years  or  more;  that 
in  1859  the  defendant  erected  a  building  on  his  own  premises  imme- 
diately adjoining  that  of  the  plaintiff,  so  as  to  exclude  the  light  from 
two  of  the  plaintiff's  windows. 

The  only  question  involved  in  this  case  is,  whether  the  plaintiff 
by  such  long  and  uninterrupted  use  of  his  windows,  and  the  light 
passing  through  them,  has  thereby  acquired  the  right  so  to  continue 
his  windows  and  thus  to  have  the  light  pass  through  them,  so  that 
any  act  of  the  defendant  which  shall  materially  obstruct  such  light 
will  make  him  a  wrongdoer,  and  liable  for  any  damage  to  the 
defendant  that  may  ensue  therefrom. 

The  rule  seems  now,  to  be  well  settled  in  England,  that  such  long 
and  uninterrupted  use  of  light  gives  the  right  to  continue  its  use, 
and  to  insist  upon  its  remaining  unobstructed  by  the  adjoining  pro- 
prietor for  all  time.  The  courts  place  this  upon  the  same  ground 
as  rights  of  way,  and  other  rights  acquired  in  and  over  the  premises 
of  another  by  long  and  undisturbed  use;  presuming  from  the  long 
exercise  of  the  privilege  by  the  one,  and  an  acquiescence  therein  by 
the  other,  that  the  right  had  its  origin  in  a  grant. 

While  the  general  doctrine  has  been  universally  adopted  in  this 
country,  its  application  to  cases  of  this  kind  has  not  been  generally 
recognized,  and  in  many  of  the  St  ites  has  been  expressly  denied. 

( )ur  statute  of  limitations  cannot  be  brought  in  aid  of  the  plaintiff's 


II.  5-]  EASEMENTS.  841 

claim.  The  statute  in  terms  only  deprives  the  aggrieved  party  of 
the  right  of  action  after  the  limited  period  from  the  time  the  cause 
of  action  accrues,  and  although  our  courts  have  held  that  the  exer- 
cise of  the  right  by  one  party,  and  an  acquiescence  therein  by  the 
other,  for  such  period,  vests  in  the  party  so  exercising  it  an  absolute 
right,  still  in  determining  the  question  whether  such  right  has  in 
fact  become  an  absolute  one,  the  time  that  the  one  has  so  exercised 
it  is  to  be  computed  from  the  period  when  a  cause  of  action  therefor 
first  accrued  to  the  other,  which  he  has  omitted  to  enforce;  so  that 
no  right  can  be  lost  or  acquired  by  virtue  of  the  statute  where  there 
has  been  no  act  done  by  the  one  for  which  the  law  gives  a  remedy 
by  action  to  the  other;  and  it  is  conceded  in  the  case  that  the 
defendant  had  no  right  of  action  against  the  plaintiff  for  any  act  of 
his  in  erecting  his  building  and  opening  and  continuing  his  windows 
on  the  side  adjoining  to  and  overlooking  the  defendant's  premises. 

This  reason  would  seem  to  imply  with  equal  force  against  the  plain- 
tiff's right  to  recover  on  the  ground  that  a  grant  will  be  presumed 
from  lapse  of  time  to  sustain  his  claim. 

The  principle  upon  which  a  grant  is  presumed  is,  that  in  no  other 
way  can  the  acts  of  the  parties  be  rationally  accounted  for.  Such 
presumption  is  required  to  account  for  the  exercise  of  the  right  by 
the  one,  and  the  acquiescence  therein  by  the  other,  for  so  long  a 
period. 

The  right  must  be  exercised  adversely  or  under  a  claim  of  a  right 
so  to  exercise  it  by  the  one,  and  it  must  be  acquiesced  in  by  the  other. 

This  of  itself  presupposes  that  the  exercise  of  the  right  by  the 
one,  without  a  grant,  is  a  violation  of  some  right  of  the  other;  other- 
wise it  could  not  be  adverse,  within  the  meaning  of  the  rule;  neither 
could  the  other  acquiesce,  for  that  presupposes  a  legal  right  to  object 
and  resist. 

If,  then,  there  is  no  violation  of  the  rights  of  another,  no  pre- 
sumption of  a  grant  by  such  other  arises;  there  is  no  occasion  for  it. 
There  is  no  right  exercised  or  claimed  by  the  one,  that  belongs  to 
the  other,  or  which  he  could  grant,  if  he  should  attempt  it. 

How,  then,  can  this  doctrine  of  presumption  apply  to  a  case  like 
the  present?  The  erection  of  the  building  by  the  plaintiff  on  the 
line  between  him  and  the  defendant  was  no  violation  of  any  right  of 
the  defendant;  he  could  not  complain  of  or  prevent  it,  and  his 
assent  or  dissent  could  in  no  manner  affect  the  transaction.  The 
legal  right  to  do  the  act  was  perfect  in  the  plaintiff.  His  right  to 
erect  his  building  on  the  division  line  is  not  controverted;  the  wis- 
dom of  the  act  is  more  questionable.  He  might  have  made  his  walls 
solid,  thus  entirely  excluding  the  light  from  that  direction  ;  he  chose 


842  INCORPOREAL   INTERESTS  IN  LAND.     [PT.  IV.  CII.  IV. 

to  leave  apertures  therein,  thereby  allowing  the  light  to  remain 
unaffected  to  that  extent;  but  how  can  it  be  said  that  by  excluding 
the  greater  part,  he  acquires  any  better  right  to  the  remainder,  than 
he  would  have  had  to  the  whole  of  it  if  he  had  not  excluded  any? 
He  has  not  done  any  act  which  has  had  any  effect  to  control  or 
influence  the  light,  except  to  exclude  it.  He  did  not  draw  or  cause 
the  light  to  pass  in  upon  his  premises  in  any  other  than  its  natural 
manner;  it  remained  upon  and  over  the  defendant's  premises  as  it 
had  always  been.  As  there  was  no  interference  with  the  rights  of 
the  defendant,  it  is  difficult  to  see  upon  what  the  presumption  of  a 
grant  can  be  based.  Lapse  of  time  and  the  presumption  arising 
therefrom  are  resorted  to  only  to  justify  in  one  that  which  would 
otherwise  be  a  usurpation  of  the  rights  of  another. 

If  a  man  can  acquire,  by  use,  a  right  to  an  uninterrupted  enjoy- 
ment of  light  under  circumstances  like  the  present,  why  not  acquire 
a  right  to  a  like  enjoyment  of  the  prospect  from  the  same  windows, 
or  to  a  free  access  of  the  air  to  the  outside  of  his  building  to  prevent 
decay,  and  many  other  rights  of  a  similar  and  no  more  ethereal 
character? 

The  result  of  which  would  be,  if  allowed,  an  utter  destruction  of 
the  value  of  the  adjoining  land  for  building  purposes.  Windows  are 
often  of  more  importance  for  the  prospect  they  afford  than  for  the 
light  they  admit.  The  light  may  be  obtained  from  other  directions, 
the  prospect  cannot.  A  pleasant  prospect  from  the  windows  of  a 
dwelling  always  contributes  more  or  less  to  the  enjoyment  of  the 
occupants,  and  often  enters  largely  into  its  pecuniary  estimate. 
But  to  admit  that  a  mere  enjoyment  of  such  prospect  for  fifteen 
years  gives  him  the  right  to  insist  that  it  shall  remain  uninterrupted 
for  all  future  time,  would  be  to  recognize  a  principle  at  variance 
with  well  established  rules,  and  one  that  could  not  be  tolerated  in 
this  country. 

No  such  right  can  be  acquired  by  use,  for  the  same  reason  that  its 
exercise  by  one  is  no  infringement  of  the  rights  of  another,  for 
which  the  law  gives  an  action.  Le  Blanc,  J.,  in  Chandler  v.  Thomp- 
son, 3  Camp.  82,  says:  '  That  although  an  action  for  opening  a 
window  to  disturb  the  plaintiff's  privacy  was  to  be  read  of  in  the 
books,  he  l*a d  never  known  such  an  action  to  be  maintained,  and  he 
had  heard  it  laid  down  by  Eyre,  Ch.  J.,  that  such  an  action  did 
not  lie." 

We  think  the  English  courts,  in  applying  the  doctrine  of  the  pre- 
sumption of  grants  from  long  use  and  acquiescence  to  this  class  of 
cases,  clearly  departed  from  the  ancient  common-law  rule  as  laid 
down  in  Berry  v.  Pope,  Cro.  Eliz.   [18,  and   the  error,  as  it  seems  to 


II.  5-j  EASEMENTS.  843 

us,  consists  in  placing  cases  like  the  present  upon  the  same  footing 
and  making  them  subject  to  the  same  rules  that  govern  another 
class  of  cases,  to  which  they  really  have  no  analogy.  In  Lewis  v. 
Price,  2  Saund.  175a.,  Wilmot,  J.,  said:  'That  when  a  house 
had  been  built  forty  years,  and  has  had  lights  at  the  end  of  it,  if  the 
owner  of  the  adjoining  ground  builds  against  them  so  as  to  obstruct 
them,  an  action  lies;  and  this  is  founded  on  the  same  reason  as 
where  they  have  been  immemorial,  for  this  is  long  enough  to  induce 
a  presumption  that  there  was  originally  some  agreement  between  the 
parties  and  .  .  .  that  twenty  year.5  was  sufficient  to  give  a  man 
a  title  in  ejectment  on  which  he  may  recover  the  house  itself,  and  he 
saw  no  reason  why  it  should  not  be  sufficient  to  entitle  him  to  an 
easement  belonging  to  the  house."  As  we  have  already  seen,  no 
presumption  of  an  agreement  arises,  as  none  was  necessary  to  justify 
the  act.  The  man  who  occupies  his  own  house  for  twenty  years  has 
no  better  title  to  it  at  the  end  of  that  time  than  he  had  in  the  outset. 
Does  he  acquire  any  greater  right  to  the  light  by  the  occupation 
than  to  the  house?  Clearly  not;  having  usurped  no  right,  he  can 
acquire  none  by  lapse  of  time.  The  error  in  the  reasoning  is  *n  say- 
ing that  because  the  man  who  takes  possession  of  his  neighbor's  house 
and  holds  it  adversely  for  twenty  years  (his  neighbor  acquiescing 
therein)  acquires  a  title  to  it,  therefore,  the  man  who  opens  windows 
in  his  own  house  that  in  no  way  interfere  with  the  rights  of  his  neigh- 
bor, and  of  which  such  neighbor  has  no  legal  right  to  complain,  and 
keeps  them  open  for  twenty  years,  thereby  acquires  a  right  to  insist 
that  no  act  shall  be  done  by  his  neighbor  on  his  own  land  that  in 
any  respect  interferes  with  or  obstructs  the  light  to  those  windows. 
In  the  one  case  there  is  an  infringement  of  the  rights  of  another  for 
which  the  law  gives  a  remedy  by  action;  in  the  other  there  is  not. 
This  constitutes  a  radical  difference  between  the  two  cases,  and  that, 
too,  in  respect  to  the  very  point  upon  which  the  whole  doctrine  of 
presumption  in  cases  like  those  under  consideration  depends. 

It  might  be  urged  with  much  force  that  a  man  who  conveys  a 
house  with  the  privileges,  etc.,  would  not  have  a  right  to  make  an 
erection  on  his  own  land  adjoining  that  would  shut  out  the  light 
from  the  windows  in  the  house  so  conveyed,  and  it  may  be  said  that 
he  who  has  occupied  another's  house  for  such  a  length  of  time  and 
under  such  circumstances  that  a  grant  will  be  presumed,  stands 
upon  the  same  footing  as  an  ordinary  grantee.  However  that  may 
be,  this  case  involves  no  such  question.  In  those  cases  the  question 
turns  upon  the  fact  that  the  title  to  the  premises  was  derived  by 
deed,  actual  or  presumed,  from  the  party  who  seeks  to  deprive  his 
grantee  of  the  enjoyment  of  the  right  he  has  conveyed.      The  right 


844  INCORPOREAL  INTERESTS  IN  LAND.     [PT.  IV.  CH.  IV. 

does  not  depend  upon  the  lapse  of  time,  but  is  as  perfect  in  the 
grantee  the  moment  the  deed  is  executed  as  it  can  ever  be.  Here 
the  title  to  the  premises  of  the  plaintiff  was  never  in  the  defendant, 
but  has  been  in  the  plaintiff  through  the  whole  period. 

This  question  was  fully  considered  in  New  York,  in  the  case  of 
Packer  v.  Poole,  19  Wendell,  309.  Bronson,  J.,  says:  "  Upon  what 
principle  courts  in  England  have  applied  the  same  rule  of  presump- 
tion to  two  classes  of  cases  so  essentially  different  in  character,  I 
have  been  unable  to  discover.  If  one  commit  a  daily  trespass  upon 
the  land  of  another,  under  a  claim  of  right  to  pass  over,  or  feed  his 
cattle  upon  it,  or  divert  the  water  from  his  mill,  or  throw  it  back 
upon  his  land  or  machinery,  in  these  and  the  like  cases  long-con- 
tinued acquiescence  affords  strong  presumption  of  right.  But  in  the 
case  of  lights  there  is  no  adverse  user,  nor,  indeed,  any  use  whatever 
of  another's  property,  and  no  foundation  is  laid  for  indulging  any 
presumption    against    the    rightful    owner."     And    again    he    says: 

'  There  is  no  principle,  I   think,  upon  which  the  modern   English 

doctrine  of  ancient  lights  can  be  supported." 

The  same  doctrine  was  held  in  Pierre  v.  Fernald,  26  Maine,  436, 
and  in  Napier  v.  Bulwinkle,  5  Richardson  (S.  C),  312,  in  both  of 
which  cases  the  subject  was  fully  discussed. 

We  see  no  reason  growing  out  of  the  nature  or  necessities  of  this 
class  of  cases  that  require  us  to  extend  the  doctrine  of  the  presump- 
tion of  grants  to  them;  but,  on  the  other  hand,  the  establishment  of 
a  rule  that  would  require  a  man  to  erect  a  building  or  wall  that  he 
did  not  need  on  his  own  premises,  for  the  sole  purpose  of  excluding 
the  light  from  his  neighbor's  windows,  would  lead  to  continual  strife 
and  bitterness  of  feeling  between  neighbors,  and  result  in  great 
mischief.  The  judgment  of  the  County  Court  is  affirmed.1 


6.   Public  (quasi)  Easements  —  Highways.4 

a.  Pig/its  of  the  public. 

Parker,  J.,  in   NUDD  v.  HOBBS. 

17  New  Hampshire,  524. —  1845. 

The  first  special  plea  of  the  defendant  sets  forth  a  right  of  way  in 
all   the   inhabitants  of  the  town  of  Hampton  across  the  plaintiff's 

1  As  to  easements  of  light,  air,  etc.,  in  a  street  in  favor  of  an  abutting  owner 
when  the  iee  is  in  the  municipality,  see  White  v.  Manhattan  Ry.  Co.,  p.  795, 
!//■>,  1 ;  Story  v.  Elevated  A'.  A'.  Co.,  90  N.  Y.  122;  Kane  v.  A7.  )'.  Elevated  A'.  A'. 
Co.,  125  N.  Y.  104.  —  Ed. 

*  In  some  1  ases  the  public  own  the  fee  in  the  highway.  For  special  ease- 
ments of  abutting  owners  in  such  case,  see  note  1,  supra.  — En. 


II.  6.]  EASEMENTS.  845 

close;  and  we  are  of  opinion  that  this  is  a  sufficient  plea  for  the 
matters  attempted  to  be  justified  by  it.  7  N.  H.  236,  Per  ley  v. 
Langley,  and  authorities  there  cited.  It  is  not  necessary  to  show  an 
open  public  highway.  There  may  be  a  way  across  the  land  of  an 
individual,  over  and  along  which  all  persons  have  a  right  to  pass, 
with  a  right  in  the  owner  of  the  soil  to  keep  up  gates  and  bars 
across  it,  for  the  protection  of  his  field.  So  there  may  be  other 
limitations  or  restrictions  upon  a  public  easement,  —  as  that  it  shall 
be  used  by  persons  on  foot  only,  or  by  those,  and  persons  riding  on 
horseback.  And  in  such  cases  a  plea  in  justification  must  qualify 
the  right  accordingly.     Chitty  on  PI.  n  16,  note  y,  9th  Am.  ed. 

A  right  of  way  also  may  exist  in  particular  persons  holding  certain 
estates.  There  can,  therefore,  be  no  objection  to  a  way  limited  to 
the  inhabitants  of  a  particular  territory,  and  Chitty,  in  the  page  just 
cited,  note  w.,  refers  to  Lutw.  1507,  for  a  precedent  of  a  right  of 
way  by  the  inhabitants  of  a  town.  It  is  not  necessary  in  pleading  to 
set  out  the  abuttals  of  such  a  way,  or  to  state  its  termini.  1  H.  Bl. 
351;  8  T.  R.  608;  2  Chitty  PI.  1116. 


MAKEPEACE  v.  WORDEN. 

1  New  Hampshire,  16.  — 1816. 

Per  Curiam.  —  In  highways  laid  out  through  the  lands  of  indi- 
viduals in  pursuance  of  statutes,  the  public  has  only  an  easement,  a 
right  of  passage;  the  soil  and  freehold  remain  in  the  individual, 
whose  lands  have  been  taken  for  that  purpose.  Perley  v.  Chandler, 
6  Mass.  454.  Towns  whose  duty  it  is  to  make  roads  and  keep  them 
in  repair  have  a  right  to  cut  trees  growing  in  highways  so  far  as  is 
necessary  to  the  performance  of  that  duty.  It  is  therefore  clear,  that 
the  defendants  are  entitled  to  judgment  on  the  first  count  in  this 
case.  Whether  towns  have  a  right  to  use  trees  thus  cut,  in  the  con- 
struction of  the  road,  is  a  question  not  necessary  to  be  settled  in 
this  case.  The  plaintiff  complains,  not  that  his  trees  have  been  thus 
used,  but  that  they  have  been  converted  to  the  private  use  of  the 
defendants.  This  complaint  in  our  opinion  is  well  founded  and  the 
plaintiff  is  entitled  to  judgment  on  his  second  count  for  the  value  of 
the  wood. 

Judgment  for  the  plaintiff. 


846  INCORPOREAL  INTERESTS  IN  LAND.     [PT.  IV.  CH.  IV. 

b.   Rights  of  the  owner  of  the  fee. 

CODMAN  v.  EVANS. 

5  Allen  (Mass.),  308.  —  1862. 

Chapman,  J.  —  The  parties  are  owners  of  adjoining  lands,  and  the 
defendant's  house  stands  on  or  near  the  line.  The  construction  of 
his  deed  was  settled  in  the  former  case  between  the  same  parties. 
1  Allen,  443.  He  has  erected  a  bay-window  which  extends  beyond 
the  line,  over  the  plaintiff's  land,  and  maintains  it  there.  The  justi- 
fication which  he  sets  up  in  this  action  is,  that  there  is  a  highway 
over  the  plaintiff's  land,  extending  to  the  line,  and  that  his  structure 
does  not  interfere  with  the  use  of  the  way.  But  this  furnishes  no 
legal  defense.  Nothing  is  better  settled  than  that  a  highway  leaves 
the  title  of  the  owner  unaffected  as  to  everything  except  the  right 
of  the  public  to  make  and  repair  it  and  use  it  as  a  way,  and  for  some 
other  public  purposes,  such  as  drainage  and  the  laying  of  aqueducts; 
and  that  an  adjoining  proprietor  has  no  more  right  to  erect  and 
maintain  a  permanent  structure  over  the  land  than  if  no  highway  was 
there.  A  mere  easement  has  passed  to  the  public,  leaving  the  fee  in 
the  owner.  An  adjoining  proprietor  may  have  occasion  to  use  the 
way  in  connection  with  his  lands,  in  a  different  manner  from  other 
people.  In  O'  Linda  v.  Lothrop,  21  Pick.  292,  it  was  held  that  he 
might  swing  his  gate  or  door  over  the  way,  suffer  his  horses  or  car- 
riages to  stand  upon  it,  lay  building  materials  upon  it  designed  to  be 
used  on  his  land,  and  throw  earth  upon  it  as  he  removed  the  earth 
from  his  cellar.  But  these  are  all  temporary  acts,  and  are  connected 
with  the  use  of  the  way.  He  may  spread  earth  upon  it  to  make  it 
more  level  and  his  access  to  it  from  his  premises  more  convenient; 
but  this  is  merely  fitting  it  more  perfectly  to  be  used  as  a  way.  In 
Underwood  v.  Carney,  1  Cush.  285,  the  uses  of  the  way  which  were 
held  to  be  legal  were  of  the  same  character  as  those  in  O 'Linda  v. 
Lothrop.  They  did  not  constitute  permanent  occupation;  nor  do 
those  cases  justify  any  occupation  except  for  a  reasonable  time,  and 
as  connected  with  its  use  as  a  way.  Here  the  occupation  has  been 
permanent,  and  having  no  connection  with  the  use  of  the  way. 

The  evidence  of  the  alleged  custom  was  rightly  rejected.  If  there 
be  a  custom  in  Boston  to  erect  bay-windows,  balconies  and  other 
structures  over  the  streets,  provided  they  do  not  interfere  with  the 
rights  of  the  public,  by  proprietors  who  own  the  soil  of  the  street, 
sueh  a  1  ustom  has  no  application  to  the  case.  If  it  be  a  custom  to 
ere<  I  them  over  the  land  of  other  people,  such  a  custom  is  illegal; 
and  the  defendant  cannot  justify  himself  in  occupying  his  neighbor's 


III.]  COMMON   OR    PROFITS   A    PRENDRE.  847 

property  as  a  part  of  his  dwelling-house  on  the  ground  that  such 
trespasses  are  customary  in  Boston.  Homer  v.  Dorr,  10  Mass.  26; 
Waters  v.  Lilley,  4  Pick  145.  In  some  of  our  ancient  highways  the 
fee  has  always  been  in  the  town.  Probably  this  is  the  case  as  to 
many  of  the  streets  of  Boston.  It  does  not  follow  from  the  decision 
of  this  case  that  the  public  could  maintain  an  action  like  the  present. 
There  are  also  many  cases  where  land  adjoining  the  highway  has 
been  so  conveyed  that,  by  our  established  construction  of  deeds,  the 
fee  of  the  land  from  the  side  line  to  the  center  of  the  highway 
remains  in  the  grantor,  though  both  parties  actually  supposed  it  was 
conveyed.  It  is  now  too  late  to  discuss  the  question  whether  it 
would  have  been  better  to  hold  that  all  deeds  bounding  on  the  high- 
way conveyed  all  the  rights  of  the  grantor  as  far  as  the  middle  of  the 
way,  as  deeds  bounding  on  streams  extend  to  the  thread.  But 
in  such  cases,  where  there  are  no  covenants  such  as  are  contained  in 
the  deed  of  Amory  to  Apthorp  respecting  the  way,  and  defining  the 
rights  of  the  parties  (see  1  Allen,  444),  and  where  the  grantor  has 
no  other  land  adjoining  the  highway  to  be  affected  by  building  a 
structure  over  the  way,  and  can  have  no  possible  use  of  his  fee  so 
long  as  the  highway  exists,  it  does  not  follow  from  the  decision  in 
this  case  that  he  can  maintain  an  action  for  the  erection  of  such  a 
structure.  For  in  the  present  case  the  plaintiff  not  only  has  a  right 
to  have  the  whole  space  occupied  by  the  street  open,  from  the  soil 
upwards,  for  the  free  admission  of  light  and  air,  and  the  prospect 
unobstructed  from  every  point,  but  it  is  a  right  of  appreciable  value 
in  reference  to  himself  and  his  grantees,  who  are  proprietors  of  the 
other  land  adjoining  the  way.  If  the  defendant  may  obstruct  the 
light  and  air  and  prospect  by  means  of  a  bay-window,  he  may  by  a 
much  larger  structure,  and  thereby  greatly  injure  the  property 
bounding  on  the  street. 

These  views  make  it  unnecessary  to  decide  the  questions  argued 
as  to  the  actual  existence  of  the  highway;  because,  if  it  does  exist, 
that  fact  does  not  constitute  a  defense  to  the  action 


III.  Common  or  profits  &  prendre.1 

VAN  RENSSELAER  v.   RADCLIFF. 

10  Wendell  (N.  Y.),  639.  —  1833. 

[Reported  herein  at  p.  475.] 

1  These    rights    were   anciently     common   of   pasture,    piscary,   turbary  and 
estovers.     They  are  rarely  to  be  found  at  present.  —  Ed. 


848 


INCORPOREAL  INTERESTS  IN  LAND.    [PT.  IV.  CH.  IV. 


IV.  Rents. 


V.  Franchises. 


HUFF  v.  McCAULEY. 

53  Pennsylvania  State,  206.  —  18S6. 
{Reported  herein  at  p.  76.] 


CALDWELL  v.  FULTON. 

31  Pennsylvania  State,  475.  —  1858. 

{Reported  herein  at  p.   102.] 


VAN  RENSSELAER  v.  HAYS. 
19  New  York,  6S.  —  1859. 
{Reported  herein  at  p.  81.] 


INGERSOLL  v.  SERGEANT. 

1  Wharton  (Pa.),  336.  —  1836. 

{Reported  herein  at  p.  S6.] 


MARSHALL  v.   MOSELEY. 
21  New  York.  280.  — 1860. 
{Reported  herein  at  p.  412.] 


JOHNS  v.  JOHNS. 

1  Ohio  State,  350.  —  1853. 

{Reported  herein  at  p.  14.] 


SYRACUSE  WATER  CO.  v.  CITY  OF  SYRACUSE. 

116  New  York,  167.  —  1889, 

Suit  to  restrain  the  city  of  Syracuse  from  granting  to  the  Central 
City  Water-works  Co.  the  right  to  place  pipes,  etc.,  in  the  city  of 
Syracuse,  with  a  view  to  supply  it  with  water.  A  second  case, 
argued  herewith,  was  brought  to  restrain  that  company  and  the  city 
from  proceeding  under  a  resolution  which  the  common  council  had 
passed.     Judgment  for  the  defendants.     Plaintiffs  appeal. 


V.]  FRANCHISES.  849 

Bradley,  J.  —  The  company  evidently  was  created  solely  for  the 
purpose  of  supplying  water  to  the  city  for  the  use  of  it  and  its  inhabi- 
tants; and,  so  far  as  appears,  the  city  then  had  no  means  for  such 
supply  other  than  such  as  had  been  possessed  by  Teall  and  his  asso- 
ciates, and  such  as  it  may  have  been  contemplated  the  plaintiff  would 
provide.  It  must  be  assumed  that  the  Legislature  was  advised  of  the 
situation,  and  that  the  franchise  was  granted  for  all  the  purposes 
within  the  provisions  of  the  charter.  The  question  now  under  con- 
sideration is  the  legislative  intent.  And  for  the  purpose  of  ascer- 
taining the  powers  and  privileges  which  were  granted  to  the  plaintiff, 
other  than  those  incidental  to  the  powers  expressly  given  and  neces- 
sary to  carry  them  into  effect,  reference  can  be  had  only  to  the  terms 
of  the  grant.  2  Kent's  Com.  298;  1  R.  S.  600,  §  3;  Halstead  v. 
Mayor,  etc.,  3  N.  Y.  433. 

The  construction  and  effect  to  be  given  to  the  contract  between 
the  State  and  the  grantee  of  a  franchise,  have  been  the  subject  of 
much  discussion,  and  the  view  of  Chancellor  Kent  at  one  time  was 
that,  although  "  the  creation  of  the  franchise  be  not  declared  exclu- 
sive, yet  it  is  necessarily  implied  in  the  grant,  as  in  the  case  of  the 
grant  of  a  ferry,  bridge  or  turnpike  or  railroad,  that  the  government 
will  not  either  directly  or  indirectly  interfere  with  it  so  as  to  destroy 
or  materially  impair  its  value.  All  grants  of  franchises  ought  to  be 
so  construed  as  to  give  them  due  effect  by  excluding  all  contiguous 
competition  which  would  be  injurious  and  operate  fraudulently  upon 
the  grant."  3  Kent's  Com.  469;  Newburgh  Turnpike  Co.  v.  Afiller, 
5  Johns.  Ch.  101. 

Whatever  support  that  rule  may  seemingly  have  in  reason  or 
propriety,  it  is  not  now  available  to  that  extent  for  the  beneficial 
protection  of  the  grantee  in  the  exercise  of  his  franchise,  but,  on  the 
contrary,  public  .grants  are  to  be  so  strictly  construed  as  to  operate 
as  a  surrender  by  them  of  the  sovereignty  no  farther  than  is  expressly 
declared  by  the  language  employed  for  the  purposes  of  their  creation. 

The  grantee  takes  nothing  in  that  respect  by  inference.  Such  is 
deemed  the  legal  intent  of  the  State  in  imparting  to  its  citizens  or 
corporations  powers  and  privileges  of  public  character.  And,  there- 
fore, except  so  far  as  they  are  by  the  terms  of  the  grant  made  exclu- 
sive, the  power  is  reserved  to  grant  and  permit  the  exercise  of  com- 
peting and  rival  powers  and  privileges,  however  injurious  they  may 
be,  to  those  taken  by  the  prior  grantee. 

The  important  leading  case  to  that  effect  in  this  country  was 
Charles  River  Bridge  v.  Warren  Bridge,  11  Peters,  420,  where  was 
sustained  the  grant  of  the  right  to  erect  a  bridge  over  the  Charles 
river,  near  one  which  had  been  constructed  over  the  same  river  pur- 

LAW    OF    PROP.    IN    LAND  —  54 


850  INCORPOREAL   INTERESTS    IN    LAND.      [PT.  IV.  CH.  IV. 

suant  to  prior  grant  from  the  State  of  Massachusetts,  although  it 
produced  a  competition  practically  destructive  of  the  value  to  the 
grantee  of  such  prior  franchise.  And  this  was  put  upon  the  ground, 
resulting  from  the  declared  rule  of  construction  of  such  grants,  that 
they  should  be  strictly  construed  as  against  the  grantee,  and  that 
nothing  should  be  taken  by  inference  or  presumption  to  enlarge 
their  import.  The  court  held  that  the  State  had  relinquished  its 
sovereignty  so  far  only  as  the  purpose  to  do  so  was  expressed  in  the 
prior  grant,  and,  therefore,  as  it  had  not  by  it  made  the  franchise 
exclusive  in  that  locality,  or  denied  to  itself  the  power  to  grant  similar 
privileges  to  others,  there  was  no  violation  of  the  legal  rights  of  the 
prior  grantee  produced  by  the  subsequent  one  complained  of. 
Although  that  case  was  determined  by  a  divided  court,  and  it  does 
not  very  clearly  appear,  by  the  report  of  it,  upon  precisely  what 
ground  all  the  members  of  the  majority  placed  their  concurrence  in 
the  result,  the  doctrine  there  announced  by  Mr.  Chief  Justice  Taney 
has  since  then  been  treated  by  that  court  as  established.  Lehigh 
Water  Co.  v.  Easton,  121  U.  S.  391.  It  has  also  been  adopted  and 
is  the  settled  rule  in  this  State.  Mohawk  Bridge  Co.  v.  Utica  6°  S. 
R.  R.  Co.,  6  Paige,  554;  Osivego  Falls  Bridge  Co.  v.  Fish,  1  Barb.  Ch. 
547;  Thompson  v.  N.  Y.  6°  H.  R.  R.  Co.,  3  Sand.  Ch.  625;  Auburn, 
etc.,  Plank  Road  Co.  v.  Douglass,  9  N.  Y.  444,  452;  Fort  Plain  Bridge 
Co.  v.  Smith,  30  Id.  44,  61;  Power  v.  Village  of  Athens,  99  Id.  592; 
Dermott  v.  State,  Id.  107.      *     *     * 

The  inquiry  which  presents  more  important  considerations  has 
relation  to  the  franchise  granted  to  the  plaintiff,  and  represented  by 
its  charter.  By  it  the  plaintiff  was  given  corporate  existence  and 
vested  with  powers  and  privileges  to  enable  it  to  exercise  its  func- 
tions. This  incorporeal  hereditament  was  its  property,  and  whatever 
other  or  corporeal  property  it  had  or  acquired,  having  relation  to  its 
legitimate  powers,  and  for  the  purposes  of  their  exercise,  became, 
and  while  applicable  to  such  purpose  was  inseparably  united  with 
the  franchise.  The  corporate  rights  and  the  corporeal  means  of 
their  exercise,  therefore,  constitute,  as  it  were,  a  single  body  con- 
sisting of  property  corporeal  and  incorporeal.  Both  the  power  and 
the  means  of  exercising  it  are  essentially  united,  and  upon  such  union 
is  dependent  the  enjoyment,  as  well  as  the  practical  value  of  the 
franchise.  Gue  v.  Tidt  Water  Canal  Co.,  24  How.  U.  S.  257;  People 
v.  O'Brien,  n  1  N.  Y.  2. 

When  its  charter  was  granted  it  was  in  contemplation  that  the 
plaintiff  would  be  called  upon  to  assume  its  corporate  duties  and 
exercise  its  powers  in  furnishing  water  to  the  city  of  Syracuse,  and 
that  for  such  purpose  it  would  take  and  acquire  the  means  of  doing 


V.]  FRANCHISES.  85 1 

so.  And  in  that  behalf  the  company  did  take,  by  conveyance,  cer- 
tain property,  then  in  use  for  that  service,  and  thereafter  acquired 
and  applied  other  property  to  such  use,  and  for  nearly  forty  years 
has  continued  to  furnish  water  for  the  city  and  its  inhabitants.  So 
far  as  appears,  until  the  year  1885,  no  means  of  supply  have  been 
sought  for  otherwise  than  through  the  plaintiff.  Then,  pursuant  to 
the  general  act  authorizing  it,  Laws  1880,  chap.  85,  The  Central  City 
Water-Works  Company  was  incorporated,  and  the  objects  of  its  crea- 
tion, as  expressed  in  its  articles  of  incorporation,  were  "  To  supply 
the  city  of  Syracuse,  N.  Y.,  and  adjacent  villages,  with  pure  and 
wholesome  water  for  domestic  use,  for  fire  protection  and  other  pub- 
lic purposes,  and  for  the  purpose  of  accumulating,  storing,  selling, 
furnishing  and  supplying  water  in  said  city  and  adjacent  villages  for 
domestic,  manufacturing,  municipal  and  agricultural  purposes." 
Shortly  thereafter  the  Common  Council  of  the  city  adopted  a  resolu- 
tion to  the  effect  that  The  Central  City  Water-Works  Company,  sub- 
ject to  the  conditions  therein  mentioned,  were  authorized  to 
construct,  maintain,  own  and  operate  water-works  in  the  city  of 
Syracuse,  for  the  purpose  of  supplying  it  with  pure  and  wholesome 
water,  etc.,  specifying  the  sources  from  which  the  water  should  be 
taken,  how  its  quality  should  be  approved,  the  pressure  which  it 
should  have  at  the  hydrants,  the  number,  character  and  generally 
the  distribution  of  the  hydrants  to  be  furnished;  and  that  on  the 
completion  of  the  works,  which  was  to  be  accomplished  within  three 
years  after  acceptance  by  it  of  the  proposition,  the  city  agreed  to  rent 
from  the  company,  for  the  period  of  twenty  years,  the  right  to  use 
the  water  to  be  supplied  by  it  at  five  hundred  and  twenty  hydrants, 
and  such  additional  number  as  might  be  ordered,  and  to  pay  therefor 
at  the  rate  of  fifty  dollars  per  hydrant  annually.  The  right  was 
reserved  to  rescind  the  grant  on  failure  of  the  company  to  comply 
with  its  terms;  also  the  right  after  five  years  to  acquire  the  works 
and  property  of  the  company  in  the  manner  there  mentioned.  This 
agreement  and  proposition,  and  all  the  terms  expressed  in  the 
resolution,  were  formally  accepted  by  the  defendant  company  in 
April,  1885.  The  purpose  of  these  actions  was  to  prevent  the  con- 
templated agreement  between  the  defendants,  and,  as  made  between 
them,  from  being  carried  into  effect,  upon  the  ground  and  for  the 
alleged  reason  that  the  plaintiff  had  the  exclusive  right  or  franchise 
to  supply  the  city  and  its  inhabitants  with  water.  And  although  the 
charter  of  the  plaintiff  does  not,  in  terms,  declare  such  power  to  be 
exclusive  or  deny  to  the  State  the  right  to  create  a  rival  franchise  in 
another,  it  is  contended  that  the  grant  to  the  plaintiff,  in  its  nature, 
necessarily  gave  to  the  plaintiff  the  exclusive  right  to  supply  the  city 


8$2  INCORPOREAL   INTERESTS   IN    LAND.      [PT.  IV.  CII.  IV. 

with  water,  because  a  franchise  to  do  so  can  embrace  no  less  than 
the  whole  city  and  the  entire  supply  of  water  within  its  boundaries, 
and,  therefore,  the  proposed  grant  to  the  defendant  is  an  invasion 
of  the  plaintiff's  franchise. 

It  may  be  assumed  that  what  is  embraced  within  the  terms  of  the 
grant  to  the  plaintiff  is  exclusive  in  such  sense  that  it  cannot  be 
covered  by  grant  to  another.  That  is  to  say,  a  grant  from  the  State 
to  a  company  to  construct  and  operate  a  bridge,  ferry  or  telegraph, 
gives  to  it  the  exclusive  right  to  operate  such  ferry,  bridge  or  tele- 
graph, and  no  right  can  be  given  or  taken  to  occupy  the  same  space 
as  the  one  so  constructed  or  operated  under  the  grant.  The  prop- 
erty in  the  company,  to  that  extent  and  for  such  purpose  exclusively, 
belongs  to  it,  but  a  similar  franchise  may  not  infringe  such  right 
although  it  may  have  the  effect  to  impair  its  operative  value.  In 
such  case  that  would  be  the  incidental  consequence  of  the  lawful 
competition  and  not  an  invasion  of  the  prior  grant.  Lehigh  Water 
Company  s  Appeal,  102  Penn.  St  515.  By  reference  to  the  plain- 
tiff's charter,  it  will  be  observed  that  the  provisions  directly  bearing 
upon  the  subject  of  furnishing  water  are  that,  "  for  the  purpose  of 
supplying  the  said  city  of  Syracuse  with  pure  and  wholesome  water, 
said  company  may  purchase,  etc.,  real  estate  necessary  for  the  pur- 
pose." §  8.  "And  said  company  shall,  when  requested,  furnish 
water  to  the  Common  Council  of  the  city  of  Syracuse  for  extinguish- 
ing fires  and  other  purposes."     §  16. 

After  careful  consideration  of  the  able  and  forcible  argument  of 
the  plaintiff's  counsel  on  this  subject,  we  are  unable,  in  view  of  the 
governing  rule  of  construction  in  such  cases,  to  adopt  its  reasoning 
to  the  effect  that  the  language  or  nature  of  the  grant  is  such  as  to 
cut  off  all  competition  in  furnishing  water  to  the  city  and  its  inhabi- 
tants, and  to  vest  in  the  plaintiff  the  exclusive  franchise  in  that 
respect. 

The  effect  of  rival  means  for  the  supply  of  water  to  the  city  upon 
the  value  of  the  plaintiff's  franchise,  is  not  properly  the  subject  of 
consideration  upon  this  inquiry,  unless  it  bear  upon  the  question  of 
construction  of  its  charter,  for  which  purpose  it  does  not  seem 
important  The  plaintiff's  structures  belong  to  it  conclusively,  and 
it  is  its  exclusive  right  to  take  water  from  its  reservoirs,  convey  it 
through  its  mains  and  pipes  and  to  use  its  apparatus  for  the  distri- 
bution and  supply  of  water  to  the  city  and  its  inhabitants.  The  fran- 
chise  of  the  plaintiff  and  all  its  property  remain  subject  to  its 
control  and  management.  By  force  of  the  grant  to  it,  the  plaintiff 
took  and  has  the  right  to  maintain  its  structures,  the  privilege  of 
supplying  all  the  water  the  city  or  its  inhabitants   may  take  from  it, 


V.]  FRANCHISES.  S5  3 

but  not  the  right  to  supply  them  with  all  the  water  they  may  be 
permitted  to  use.  It  may  be  that  the  demand  upon  it  for  supply 
will  be  lessened  by  the  addition  of  other  means  which  may  be  pro- 
vided to  bring  water  into  the  city. 

The  supply  embraced  within  the  franchise  of  the  plaintiff  did  not, 
by  the  terms  of  the  grant  or  by  necessary  implication,  shut  out  all 
other  means  of  obtaining  supply  there.  And,  in  view  of  the  demand 
of  the  rule  of  construction  before  referred  to,  such  exclusive  right 
in  the  grant  of  a  public  franchise  cannot  rest  upon  inference,  pre- 
sumption or  doubtful  construction.  Chenango  Bridge  Co.  v.  Bi/ig- 
hamton  Bridge  Co.,  27  N.  Y.  93;  3  Wall.  75.  It  would  hardly  be 
claimed  that  a  grant  to  a  ferry  company  of  the  franchise  to  supply 
the  means  of  travel  and  transportation  across  the  East  river, 
between  New  York  and  Brooklyn,  would  confer  the  exclusive  right 
on  such  company  to  control  such  transportation,  by  ferry,  on  that 
river  between  the  two  cities,  although  it  would  have  the  exclusive 
right  to  operate  its  boats  and  enter  its  slips.  Such  exclusive  right 
would  necessarily  result  from  the  nature  of  the  grant  as  vested  by 
it,  because  the  property  and  means  provided  for  the  exercise  of  the 
franchise  belong  to  the  grantee,  and  can  be  occupied  or  used  by  no 
other  party. 


CHAPTER  V. 
Equitable  Estates  and  Interests  in  Land.1 

JAQUES  v.  TRUSTEES  OF  M.   E.   CHURCH. 

17  Johnson  (N.  Y.),  548.  —  1820. 
\Reported  herein  at  p.  93.] 


Kennedy,  J.,  in  PULLEN  v.  RIANHARD. 

1  Wharton  (Pa.),  514.  —  1S36. 
{Reported  herein  at  p.  95.] 


'Uses  Before  the  Statute  Of  Uses. —"Our  early  jurists  regarded  the 
legal  estate  in  fee  simple,  and  the  conterminous  use,  as  being  two  separate 
things,  commonly  found  together,  and  prima  facie  presumed  to  be  united  in  the 
legal  tenant;  but  capable  of  separation,  and  having  definite  characteristics 
when  separated.  When  such  separation  took  place,  the  use  conferred  the  right 
both  to  take  the  profits  of  the  lands,  and  also  to  call  upon  the  person  having  the 
legal  estate  to  make  such  conveyances  thereof  as  the  person  having  the  use 
should  think  fit.  *  *  *  Regarded  as  a  descendible  entity,  the  descent  of  the 
use  followed  the  descent  of  the  thing  of  which  it  was  the  use.  So  that  the  use 
of  lands  which  were  subject  to  no  peculiar  local  custom,  held  for  an  interest 
analogous  to  a  common-law  fee  simple,  descended  to  the  heir  general  [of  the 
cestui  que  use]  *  *  *  The  person  entitled  to  the  use  (cestui  que  use)  might 
alienate  the  use  by  conveyance  inter  vivos.  So  also  he  might  devise  the  use 
before  the  Statute  of  Wills,  although  the  use  of  lands  which  were  not  them- 
selves devisable."  Challis'  Law  ol  Real  Property  (2d  ed),  pp.  351-2.  Such  use 
of  lands  might  be  a  {quasi)  fee,  or  for  life,  or  for  years.  The  cestui  que  use  hav 
ing,  in  equity,  the  ri^ht  to  the  possession  and  full  control  of  the  lands,  a  use 
was  certainly  an  "  equitable  estate."  Of  course,  at  law,  the  cestui  que  use  in 
possession  was  regarded  as  no  more  than  the  tenant  at  will  of  the  holder  of  the 
legal  title. 

Uses  Under  the  Statute  of  Uses. —  In    1535    (27  Hen.  VIII.,  c.  10,  see 

Bolles'    Important    Eng.    Statules,  p.   32),  was  passed   the   Statute  of   Uses,  the 

purpose  of   which  was   10   convert   the   use  into  a  legal  estate  and  make  it   fully 

subject   to    the   law    governing   such   estates.      Had   this   statute    fully    brought 

about    thai    result    we    should     probably     have    heard    no    more    of    "  equitable 

■      "      For   the    operation    and    effect    of  this   statute    in   conveyancing,  see 

undei  "  Title."     The  New  York  Statute  of  Uses  will  be  found  in  £^  72 

•    il  Pro]    rt)   Law. 

[854] 


IT.  IV.  CH.  VI]  EQUITABLE  ESTATES  AND  INTERESTS  IN  LAND.  855 

The  Modern  "Trusts."  —  The  uses  which  survive  the  statute,  as  equitable 
rights  or  interests,  are  now  called  "  trusts."  The  following  are  the  more 
important: 

(1)  Active  Trusts. — The  statute  was  held  not  to  execute  the  use  when  the 
legal  holder  of  the  land  had  duties  to  perform  with  reference  thereto,  or  for  the 
beneficiary-, 'which  required  that  he  should  retain  the  possession  or  control 
thereof.  The  interest  of  the  beneficiary  in  these  "  active  trusts  "  is  rather  an 
equitable  chose  in  action  than  an  "  estate."  See  X.  V.  R.  P.  I...  ,'.'  7'',  77 
for  trusts  of  this  kind  permitted  in  New  York.  See  also  pp.  583-604,  supra,  for 
"spendthrift  trusts." 

(2)  Chattel  Interests  Limited  to  Uses.  — "  Th^t^rm^sdsed^jused-iiLxiejcribing  its 
[the  Statute  of  Uses']  operation,  means  invested  with  the  legal  possession  for  an 
estate  of  freehold,  excluding  possession  for  a  term  of  years  or  a  chattel  inter- 
est. Therefore,  a  use  declared  or  raised  upon  a  term  of  years  is  not  executed  by 
the  statute  and  remains  cognizable  in  equity  only."  1  Leake,  Law  of  Property 
in  Land,  118.  _A  gift  then  to  A^ for  ten  yearsjo  the  use  of  B.  does  not  give  B. 
the  ]egal  interest,  but  only  an  "  equitable  estate  for  years."  But  see  N.  Y.  R. 
P.  L.,  §  72. 

(3)  A  Use  upon  a  Use.  —  The  courts  have  decided  that  the  statute  does  not 
execute  a  use  limited  upon  a  use;  that  is  to  say,  upon  a  feoffment  to  A.  and  his 
heirs  to  the  use  of  B.  and  his  heirs,  to  the  use  of,  or  in  trust  for  C,  the  statute 
executes" the  use  in  B.  vesting  him  with  a  legal  title,  but  is  then  exhausted  and 
the  use  limited  to  C.  becomes  an  equitable  estate  if  the  trust  was  passive;  an 
equitable  chose  in  action  if  the  trust  was  active.     But  see  N.  Y.  R.  P.  L.,  §  72. 

(4)  Trusts  for  the  Separate  Use  of  a  Married  Woman. — These  are  held  not  to 
be  executed  by  the  statute  and  remain  "  equitable  estates  "  unless,  of  course 
they  are  in  the  form  of  active  trusts.      See  Pullen  v.  Rianhard,  p.  95,  supra. 

(5)  Trusts  Created  by  Operation  of  Law.  — These  are  (a)  resulting  trusts,  as  in 
cases  where  the  grantor  disposes  of  the  legal  title  only,  where  the  express  object 
of  the  trust  fails  in  whole  or  in  part,  and  where  a  conveyance  is  taken  in  the 
name  of  another  than  the  one  paying  the  consideration  (see  N.  Y.  R.  P.  L.,  §  74); 
(/>).  constructive  trusts,  where  a  title  is  acquired  by  fraud  and  a  court  of  equity, 
converts  the  wrongdoer  into  a  trustee  for  the  one  defrauded.  (See  Hopkins  on 
Real  Property,  pp.  265  and  269.)  In  these  cases  the  statute  does  not  execute 
the  use,  and  the  interest  of  the  beneficiary  may  in  some  jurisdictions  still  be 
an  "equitable  estate." —  Ed, 


CHAPTER  VI. 
Future  Estates  and  Interests  in   Land. 

I.  Kinds  of  future  estates,  the  characteristics  of  each  and  the  mode 
of  their  creation. 

i.   Reversions;  Interests  and  Possibilities  Analogous  Thereto. 

a.    Reversions.* 

BATES  v.  SHRAEDER. 

13  Johnson  (N.  Y.),  260.  —  1816. 
[Reported  herein  at  p.  460] 

1  -'An  estate  in  reversion  is  the  residue  of  an  estate  left  in  the  grantor,  to 
commence  in  possession  after  the  determination  of  some  particular  estate 
granted  out  by  him."  2  Bl.  Com.  175.  See  also  N.  Y.  R.  P.  L.,  §  29, 
"A  reversion  is  the  residue  of  an  estate  left  in  the  grantor  or  his  heirs,  or  in  the 
heirs  of  a  testator,  commencing  in  possession  on  the  determination  of  a  particu- 
lar estate  granted  or  devised."  "  If  there  be  a  gift,  in  tail,  the  reversion  of  the 
fee  is,  without  any  special  reservation,  vested  in  the  donor  by  act  of  law;  and 
so  also  the  reversion  after  an  estate  for  life,  years,  or  at  will,  continues  in  the 
lessor.  *  *  *  A  reversion  is  never,  therefore,  created  by  deed  or  writing, 
but  arises  from  construction  of  law."  2  Bl.  Com.  175.  Bates  v.  Shraeder, 
supra,  p.  460.  Since  the  creation  of  an  "  estate  "  for  years  or  at  will  leaves  the 
lessor  still  "  seised,"  his  interest  is  not  a  true  "  reversion."  It  seems,  how- 
ever, to  have  been  called  by  that  name  ever  since  those  "  estates  "  passed  over 
from  mere  contract  rights  into  interests  in  the  land. 

Reversions  are  always  vested  rights.  In  Floyd  v.  Carow,  S8  N.  Y.  560,  occurs 
the  following  language:  "  The  estates  devised  to  the  unborn  issue  of  the  life 
tenants  were  contingent  remainders  in  fee,  depending  upon  a  double  contin- 
gency, viz.:  the  birth  of  issue  and  their  survivorship.  There  was  left  in  the 
testator  a  contingent  reversion  in  fee,  expectant  upon  the  determination  of  the 
life  estates,  and  the  failure  of  issue  of  the  life  tenants.  *  *  *  The  life  ten- 
ants died,  after  the  death  of  the  testator,  without  issue.  Upon  their  death,  the 
contingent  reversion  of  the  testator  in  the  lands  devised  to  them  and  their 
issue  was  changed  into  an  absolute  fee,  which,  not  having  been  specifically 
devised,  descended  to  the  plaintiff  as  heir-at-law,  unless  it  passed  to  the 
appointees  of  the  testator's  wife  under  the  sixth  clause  of  the  will."  See  also 
Chaplin's  Suspension  of  the  Power  of  Alienation,  $  129.  It  is  submitted  that  the 
condition  here  is  subsequent  as  to  the  reversion  and  not  precedent  and  that  the 
reversion    is    vested.      See    Gray's    Rule-    Against    Perpetuities,    §§    11    and     113, 

[856] 


I.  I.]  KINDS   OF   FUTURE    ESTATES:    REVERSIONS.  857 

b.   Equitable  reversions. 

LORING  v.  ELIOT. 

16  Gray  (Mass.),  5^8.  —  1S60. 

Hoar,  J.  —  The  construction  of  the  deed  of  trust  made  by  Elizabeth 
Fleet  Eliot1  to  her  father  was  settled  by  this  court  in  the  case  of  Hil- 
dreth  v.  Eliot,  8  Pick.  293,  so  far  as  it  was  necessary  to  determine 
the  questions  which  that  case  presented.  It  was  there  held,  and  we 
have  no  doubt,  correctly,  that  the  trustee  took  the  entire  legal  estate, 
and  that  the  equitable  estate  of  Mrs.  Hildreth  was  only  for  life,  so 
that  her  children,  if  she  should  leave  any  at  her  decease,  would  take 
a  remainder  as  purchasers.  The  grant  was  to  the  trustee  and  his 
heirs  forever.  It  was  in  trust  to  sell  the  whole  or  any  part  and  apply 
the  proceeds  to  her  support  as  she  should  judge  necessary;  and  the 
estate  of  the  trustee  must  be  co-extensive  with  the  trust. 

The  only  question  which  remains  to  be  considered  is  whether  any 
equitable  estate  was  created  in  Mrs.  Hildreth  by  force  of  the  pro- 
vision that,  in  case  of  her  death  leaving  no  children,  the  trustee 
should  convey  the  estate  to  her  heirs-at-law,  and  this  must  depend 
upon  the  consideration  whether  the  words  "  heirs-at-law  "  in  this 
conveyance  are  to  be  construed  as  words  of  limitation  or  of  purchase. 

In  Shelley  s  Case.  1  Co.  103,  the  rule  was  stated,  "  when  the  ancestor 
by  any  gift  or  conveyance  takes  an  estate  of  freehold,  and  in  the 
same  gift  or  conveyance  an  estate  is  limited  either  mediately  or 
immediately  to  his  heirs  in  fee  or  in  tail,  that  always  in  such  cases 
'  the  heirs  '  are  words  of  limitation  of  the  estate,  and  not  words  of 
purchase.1'  This  rule  was  abolished  by  the  St.  of  1791,  c  60,  §  3, 
as  to  wills;  but  it  remained  in  force  as  to  deeds  until  the  Rev.  Sts. 
c.  59,  §  9,  terminated  its  application  to  deeds  as  well  as  wills.  As 
this  deed  was  executed  in  181 7,  the  rule  in  She/ley's  Case  was  there- 
fore in  force,  and  is  to  be  regarded  in  its  construction. 

The  equitable  estate  of  Mrs.  Hildreth  was,  from  the  time  of  her 
marriage,  an  estate  for  life,  with  a  contingent  remainder  in  fee  to 
her  children,  in  case  she  should  leave  any  at  her  decease;  and  a 
farther  limitation,  which,  if  made  to  any  person  by  name,  would  have 
been  a  contingent  remainder,  collateral  to  the  first  remainder  in  fee, 
and  therefore  good  in  law.     4  Kent's  Com.  (6th  ed.)  200;  2  Doug. 

Reversions  may  arise  by  the  creation  of  a  less  estate  out  of  a  fee  of  any  quality. 
01  out  of  an  estate  for  life.  The  residue  of  a  term  of  years  remaining  in  one 
who  has  given  a  sub-lease  is  also  termed  a  "  reversion."  —  Ed. 

1  Miss  Eliot  married  Hildreth.  The  deed  in  question  was  a  marriage  settle- 
ment. —  Ed. 


858     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CII.  VI. 

505,  note,  and  cases  there  cited.  But  as  the  second  limitation  is  to 
her  heirs-at-law,  it  seems  to  fall  precisely  within  the  rule  in  Shelley  s 
Case,  to  wit,  that  the  ancestor  taking  an  estate  for  life,  and  in  the 
same  conveyance  an  estate  being  limited  mediately  (that  is  to  say, 
with  an  estate  interposed  between  the  two)  to  the  heirs,  this 
remainder  shall  attach  in  the  ancestor,  and  shall  not  be  in  abeyance. 
2  Rol.  Abr.  417;  Remainder,  H.  pi.  3.  And  by  an  application  of  the 
same  principle,  a  conveyance  in  fee,  with  a  limitation  of  an  ultimate 
use  to  the  heirs  of  the  grantor,  is  construed  as  retaining  a  reversion 
in  him;  "  for  the  ancestor  during  his  life  beareth  in  his  body  (in 
judgment  of  law)  all  his  heirs."  "  And  if  the  limitation  had  been 
to  the  use  of  himself  for  life,  and  after  to  the  use  of  another  in  tail, 
and  after  to  the  use  of  his  own  right  heirs,  the  reversion  of  the  fee 
had  been  in  him,  because  the  use  of  the  fee  continued  ever  in  him." 
Co.  Lit.    22  b. 

Trusts  are  subject  to  the  same  rules  of  descent,  and  are  deemed 
capable  of  the  same  limitations,  as  legal  estates.  4  Kent  Com.  302. 
As  was  said  by  Lord  Mansfield  in  Burgess  v.  Wheate,  1  W.  Bl.  160, 
"whatever  would  be  the  rule  of  law,  if  it  was  a  legal  estate,  is 
applied  in  equity  to  a  trust  estate."  Parker  v.  Converse,  5  Gray, 
339;  New hall  v.    Wheeler,  7  Mass.  189. 

But  a  distinction  has  prevailed  to  some  extent  in  regard  to  the 
construction  of  trust  estates,  especially  as  to  those  which  are  execu- 
tory, and  to  those  created  by  marriage  settlements;  they  are  to  be 
construed  with  a  much  greater  deference  to  the  manifest  intention, 
to  be  deduced  from  the  whole  instrument  of  conveyance,  than  in 
construing  the  like  limitations  in  legal  estates.  1  Fearne  Cont. 
Rem.  (10th  ed.)  90;  Neves  v.  Scott,  9  How.  196.  It  is  therefore 
proper  to  inquire,  whether  there  is  anything  in  the  objects  of  this 
deed  of  trust,  which  would  lead  to  the  conclusion  that  it  was  intended 
to  alter  the  usual  rule  of  construction,  and  to  use  the  word  "  heirs  " 
as  a  word  of  purchase. 

The  recital  preceding  the  grant  to  the  trustee  states  that  "  whereas 
she,  the  said  Elizabeth  Fleet  Eliot,  is  desirous  of  securing  the  said 
,  both  real  and  personal,  in  the  event  of  her  marriage,  to  ner 
use  and  benefit;  and  for  this  purpose  it  hath  been  agreed  that 
all  the  estate  and  property  aforesaid  shall  be  granted  "  to  a  trustee, 
"  to  be  held  in  trust  for  the  separate  and  sole  use  and  benefit  of  her, 
the  said  Elizabeth,  ~\n6  her  heirs  (notwithstanding  any  such  cover- 
ture), upon  the  terms  and  conditions,  for  the  uses,  intents  and  pur- 
,  under  the  limitations,  and  for  and  during  the  time,  as 
!>  reinafter  expre  I  "  The  estate  Tor  life  is  limited  until  the 
marriage  to  the  sole   use  and  behoof  of  the  said  Elizabeth  and  her 


I.    I.]  KINDS    OF    FUTURE    ESTATES:    REVERSIONS.  859 

heirs,  and  then  "  to  the  sole  use  and  separate  benefit  of  her,  the  said 
Elizabeth,  without  being  liable  to  the  debts,  incumbrances  or  control 
of  any  husband  she  may  have  during  the  existence  and  continuance 
of  said  trust."  The  income,  with  such  portion  of  the  principal  as 
the  trustee  shall  judge  necessary  for  her  convenience  and  support, 
is  to  be  paid  to  her,  or  to  such  persons  as  she  shall  in  writing,  with- 
out the  signature  or  interference  of  any  husband,  appoint.  At  her 
death,  the  trustee  is  to  convey  and  transfer  all  that  remains  to  her 
children,  if  she  shall  leave  any,  to  them  and  their  heirs  and  assigns 
forever;  and  in  case  she  should  die  without  issue,  to  her  heirs-at-law. 

It  would  seem  to  be  apparent  from  these  clauses  in  the  deed,  that 
its  whole  purpose  was  to  secure  the  estate  to  the  separate  use  of  the 
wife  during  her  life,  free  from  any  control  of  her  husband;  and  to 
secure  what  should  remain  of  it  to  her  children,  if  she  should  leave 
any.  So  far  from  anything  in  the  deed  showing  a  purpose  to  give  a 
different  meaning  to  the  word  "  heirs  "  from  its  usual  legal  import 
as  a  word  of  limitation,  it  is  noticeable  that  in  the  covenants  of  the 
trustee  none  is  inserted  for  any  disposition  of  the  estate  beyond  the 
remainder  to  the  children.  It  has  been  suggested  ai  the  argument 
that  this  omission  was  accidental;  but  it  is  an  accident  which  would 
not  have  been  likely  to  occur  if  the  purpose  had  been  to  make  an 
express  provision  for  collateral  relatives.  By  limiting  the  estate  in 
the  first  instance  to  the  wife  for  life,  with  a  contingent  remainder  in 
fee  to  the  children,  if  she  should  leave  any,  the  children  would  take, 
if  at  all,  as  purchasers;  and,  therefore,  although  the  husband  is 
entitled  to  curtesy  in  his  wife's  equitable  estate  of  inheritance,  the 
condition  of  an  estate  by  the  curtesy,  that  there  should  be  issue  of 
the  marriage  which  could  inherit  the  estate,  would  not  exist. 
Roberts  v.  Dixwell,  1  Atk.  607;  1  Fearne  Corn.  Rem.  90;  1  Cruise 
Dig.  tit.  5,  c.  1,  §  22;  Barker  v.  Barker,  2  Sim.  249.  As  far,  there- 
fore, as  the  protection  of  the  estate  of  the  wife  and  of  the  children 
against  the  control  of  the  husband  or  any  incumbrance  arising  from 
the  coverture,  was  the  object,  that  object  was  secured. 

We  are,  therefore,  of  opinion  that  Mrs.  Hildreth  had  an  equitable 
reversion,  which  she  could  lawfully  devise,  and  that  the  claimants 
under  her  will  are  entitled  to  a  conveyance  from  the  trustee. 

Decree  accordingly. 


86o     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

c.  Possibilities  analogous  to  reversions. 

(i.)  The  Feudal  Escheat. 

(a.)   On  failure  of  heirs  to  a  fee.1 

(5.)  On  the  dissolution  of  a  corporation  seised  of  real  estate. 

Holman,  J.,  in    STATE    BANK    OF    INDIANA   v.  STATE    OF 

INDIANA. 

i  Blackford  (Ind.),  267.  —  1823. 

The  president  and  directors  of  the  corporation  become  the  agents 
of  the  stockholder,  and  if  they  violate  the  conditions  on  which  he 
enjoys  this  privilege  [the  corporate  franchise],  his  privilege  is  imme- 
diately subject  to  forfeiture  by  this  act  of  his  agents.  Nor  will  the 
regard  which  the  Constitution  has  for  private  property,  secure  such 
property  from  annihilation  by  a  dissolution  of  the  corporation.  So 
that  we  see  nothing  in  the  Constitution  to  prevent  the  seizure  of 
those  franchises,  let  the  effect  upon  private  property  be  what  it  may. 
And  there  can  be  no  doubt  but  that  this  judgment  so  far  as  it 
authorizes  a  seizure  of  the  franchises  into  the  hands  and  custody  of 
the  State,  is  warranted  by  law.  When  it  appears  that  the  liberty  has 
been  once  granted,  and  is  forfeited  by  misuser  or  nonuser,  the  judg- 
ment shall  be  that  it  be  seised  into  the  King's  hands.  Year-book, 
15  Ed.  4,  cited  in  2  Kyd  on  Cor.  407.  And  such  appears  to  be  the 
law  at  present.  Thus  far  everything  appears  to  be  regular.  But 
when  we  proceed  to  that  part  of  the  judgment  that  authorizes  a 
seizure  into  the  hands  of  the  State  of  all  the  goods  and  chattels, 
rights,  credits  and  effects,  together  with  all  and  singular  the  lands, 
tenements  and  hereditaments  of  the  corporation,  we  are  compelled 
to  pause  and  minutely  examine  the  ground  on  which  this  part  of  the 
judgment  has  been  founded.     *     *     * 

The  most  of  the  cases  to  be  found  in  the  books  against  corpora- 
tions are  where  the  corporations  have  been  created  for  the  purposes 
of  government,  and  calculated  for  perpetuity,  and  where  the  prop- 
erty of  the  corporation,  whether  real  or  personal,  has  formed  a  very 
inconsiderable  feature   in   the  case.     Of  course,    the   effect  of  the 

1  The  feudal  escheat  in  these  cases  was  to  the  grantor  —  the  creator  of  the  fee 
in  question.  Since  the  statute  quia  emptores  all  conveyances  in  fee  are  theoreti- 
cally  transfers  of  a  fee  already  in  existence  and  not  the  creation  of  a  new  fee, 
and  the  escheat  is  to  the  grantor's  lord.  Where  tenure  is  abolished  there  can 
be  n  1  te<  hnti  al  escheat,  but  there  is  unsually  a  statutory  escheat,  on  failure  of 
heirs,  to  the  State.     See  N.  Y.  State  Const.,  art.  I.,  §  10.  —  Ed. 


I.   i.]  KINDS    OF    FUTURE    ESTATES:    REVERSIONS.  86l 

judgment  on  the  property  of  corporations  has  been  but  seldom  a 
question,  and  is  much  less  explained  than  the  effect  of  the  judgment 
on  the  franchises.  There  is  a  tedious  labyrinth  of  cases  through 
which  we  have  to  travel  on  this  subject,  and  many  of  the  landmarks 
are  so  dim  and  uncertain  that  we  are  frequently  at  a  loss  to  know 
whether  we  are  on  safe  and  tenable  ground.  It  is  certain,  however, 
that  the  dissolution  of  a  corporation  is  effected  by  a  seizure  of  its 
franchises,  although  the  franchises  themselves  are  not  thereby 
destroyed,  for  they  exist  in  the  hands  of  the  State,  and  may  be  after- 
wards granted  to  the  same  or  other  individuals,  in  the  same  manner 
in  which  they  were  originally  granted.  But  the  existence  of  the 
corporation  is  terminated.  Its  being  is  so  completely  lost  that  it 
can  have  no  power  over,  nor  connection  with,  anything  in  existence; 
of  course,  it  can  no  longer  be  considered  as  the  owner  or  possessor 
of  lands  or  goods,  rights  or  credits.  But  it  does  not  follow  that 
those  lands  and  goods,  rights  and  credits,  necessarily  fall  into  the 
hands  of  the  State,  much  less  that  they  are  proper  objects  to  be 
included  in  the  terms  of  the  judgment.  There  are  but  two  grounds 
on  which  it  can  be  contended  the  corporate  effects  fall  into  the 
hands  of  the  State:  ist,  as  a  forfeiture  for  abusing  the  franchises; 
or  2d,  for  the  want  of  an  owner  by  the  dissolution  of  the  corporation. 
When  we  examine  the  first  of  these  grounds,  we  find  nothing  in  the 
books  to  support  an  idea  that  the  abuse  of  corporate  franchises 
occasions  a  forfeiture  of  lands  or  goods,  rights  or  credits,  or,  in 
fact,  occasions  any  other  forfeiture  but  the  franchises  themselves. 
The  consequence  of  a  breach  of  the  implied  condition  on  which  their 
liberties  were  granted,  was  not  that  they  should  forfeit  their  prop- 
erty or  possessions  if  they  abused  their  franchises,  but  only  that 
they  should  forfeit  the  franchises.  That  which  comes  out  of  the 
hands  of  the  King  is  the  proper  subject  of  forfeiture;  the  King,  by 
the  seizure,  resuming  what  originally  flowed  from  his  bounty. 
Authorities  leading  to  this  conclusion  are  numerous.  See  the  cases 
cited  in  2  Bac.  32,  and  in  The  King  v.  Amery,  2  T.  R.  515.  For  the 
forfeiture  is  the  same  for  nonuser,  when  no  property  has  been  held 
or  rights  exercised,  as  for  misuser  or  abuser,  after  the  possession  of 
much  property  and  the  exercise  of  extensive  rights  and  credits;  and 
the  judgment  is  the  same  in  both  cases.  Consequently,  the  judg- 
ment could  not  direct  a  seizure  of  the  corporate  possessions,  as  a 
forfeiture  for  the  violation  of  the  charter.  Nor  is  the  second  ground 
—  that  the  property  falls  to  the  State  for  the  want  of  an  owner,  on 
the  dissolution  of  the  corporation  —  more  tenable  as  a  foundation  on 
which  to  sustain  this  judgment.  For  the  ownership  of  the  cor- 
poration does  not  cease  until  its  dissolution.     And  whether  it  is  dis- 


S6?    future  estates  and  interests  in  land.    [PT.  IV.  CH.  VI. 

solved  by  the  judgment  of  seizure,  or  not  until  the  State  has  execution 
on  that  judgment,  is  not  here  very  material.  For  if  the  corporation 
is  dissolved  by  the  judgment,  the  judgment  must  be  regularly 
entered,  and  have  its  full  effect  before  the  dissolution  takes  place; 
and  it  is  not  till  then  that  the  property  can  be  said  to  be  without 
an  owner.  The  loss  of  the  property  to  the  corporation  is  a  conse- 
quence of  the  judgment;  and  it  is  a  contradiction  of  the  first  princi- 
ples of  reason  — a  complete  reversal  of  effect  and  cause  —  to  make 
such  loss  of  property  a  part  of  the  judgment.  That  which  cannot 
exist  until  after  the  judgment,  can  never  be  the  subject-matter  on 
which  the  judgment  is  given.  But  the  better  opinion  seems  to  be, 
that  the  corporation  is  not  dissolved  by  the  judgment  of  seizure,  but 
that  it  exists  until  the  franchises  are  seized  by  the  execution  on  that 
judgment.  See  2  Kyd  on  Cor.  409,  410,  and  the  authorities  there 
cited.  Consequently,  the  last  shadow  of  a  support  for  this  judg- 
ment, on  this  ground,  must  vanish. 

We  have  thus  far  examined  the  judgment  which  directs  a  seizure 
of  the  goods  and  chattels,  rights  and  credits,  lands  and  tenements, 
of  the  corporation,  on  the  assumed  position  that  they  will  necessarily 
fall  to  the  State  on  the  dissolution  of  the  corporation.  We  shall 
now  inquire  into  the  correctness  of  this  position.  In  order  to  eluci- 
date the  subject,  we  shall  examine  it  in  detail;  and  in  the  1st  place 
inquire,  what  becomes  of  the  lands  and  tenements  —  2d,  what 
becomes  of  the  goods  and  chattels  —  and  3d,  what  becomes  of  the 
rights  and  credits,  of  the  corporation;  and  we  shall  find  that  each 
of  these  three  items  is  governed  by  different  principles.  1st.  As  to 
the  lands  and  tenements.  —  "  When  a  corporation  is  dissolved,"  says 
Sir  William  Blackstone,  "  the  lands  and  tenements  revert  to  the  per- 
son or  his  heirs  who  granted  them  to  the  corporation;  for  the  law 
doth  annex  a  condition  to  every  such  grant,  that  if  the  corporation 
be  dissolved,  the  grantor  shall  have  the  lands  again.  The  grant  is 
only  during  the  life  of  the  corporation,  which  may  endure  forever; 
but  when  that  life  is  determined  by  the  dissolution  of  the  body 
politic,  the  grantor  takes  it  back  by  reversion,  as  in  the  case  of  every 
other  grant  for  life."  B.  Com.  484.  This  is  the  doctrine  advanced 
by  Lord  Coke.  Co.  Litt.  13  b.  See  also,  2  Kyd  on  Cor.  516;  2  Bac. 
32;  2  Cruise,  493;  and  Colchester  v.  Seaber,  3  Burr.  1866.  We  see  but 
little  in  the  books  that  contradicts  or  questions  those  authorities,  and 
the  cases  that  look  a  different  way,  maintain  that  the  lands  would 
escheat.  2  Bac.  32.  If  cither  of  those  principles  be  correct,  we 
fed  warranted  in  determining  that  the  corporate  lands  and  tene- 
ments cannot  by  seised  into  the  hands  of  the  State,  and  certainly  not 
in  the  manner  contemplated  by  this  judgment.      2d.    As  to  the  goods 


I.   i.]  KINDS   OF    FUTURE    ESTATES:    REVERSIONS.  863 

and  chattels.  —  On  this  subject  the  books  are  almost  silent.  In  the 
argument  of  Colchester  v.  Seaber  it  is  said  by  Sir  Fletcher  Norton, 
on  the  authority  of  1  Ro.  Ab.  816,  that  the  goods  and  chattels  gc  to 
the  crown.  An  English  writer,  who  has  collected  together  most  of 
the  cases  on  corporations,  concludes  his  remarks  on  the  effect  of  a 
dissolution  in  these  words:  "  What  becomes  of  the  personal  estate 
is,  perhaps,  not  decided;  but  probably  it  vests  in  the  crown." 
2  Kyd  on  Cor.  516.  We  do  not  feel  under  the  necessity  of  resolv- 
ing any  doubts  which  may  rest  on  the  subject;  for  if  the  law  were 
conclusive,  that  the  goods  and  chattels  in  this  case  would  vest  in  the 
State  on  the  dissolution  of  the  corporation,  yet  we  have  already  seen 
that  this  would  not  be  as  a  forfeiture,  but  because  they  were  with- 
out an  owner,  and  that  the  claim  of  the  State  could  not  exist  until 
after  judgment;  consequently  it  is  impossible  to  include  them  in  the 
terms  of  the  judgment.  3d.  As  to  the  rights  and  credits  of  the  cor- 
poration. —  These,  as  applying  to  debts,  etc.,  due  to  the  corporation 
are  supposed  to  be  of  considerable  amount,  and  have  formed  a 
principal  feature  in  every  view  of  this  case.  But  the  importance  of 
the  case,  arising  from  the  amount  in  controversy,  cannot  affect  the 
principles  by  which  it  is  governed;  and  when  those  principles  are 
fixed,  they  must  be  declared,  let  the  consequence  to  individuals  or 
the  community  be  what  it  may.  That  the  debts  are  necessarily  lost 
to  the  corporation  naturally  follows  from  the  principles  we  have 
examined.  For  when  dissolved  they  have  no  existence,  and  can 
have  no  claim  to,  nor  control  over,  anything  whatever.  They  not 
only  die,  but  leave  no  representative  behind  them.  This,  in  every 
respect,  is  the  case  with  aggregate  corporations.  Sole  corporations 
depend,  in  this  respect,  upon  principles  somewhat  different;  but 
with  them  we  have  no  concern.  But  although  the  debts  fall  out  of 
the  lifeless  hands  of  the  corporation,  at  the  same  time  with  their 
real  and  personal  estate,  yet  when  thus  out  of  their  hands,  they  are 
very  different  in  their  natures  from  the  real  and  personal  estate. 
Lands  and  goods  have  a  necessary  existence,  although  they  may  be 
without  an  owner  in  being  or  in  expectancy.  They  continue  in 
being,  and  may  be  made  the  subject  of  possession  by  occupancy. 
But  this  is  not  the  case  with  respect  to  debts.  They  have  no  neces- 
sary existence,  and  are  so  conclusively  personal,  that  they  cannot 
exist  without  an  obligor  and  obligee  in  being,  or  in  expectancy. 
And  on  the  death  of  the  obligor  or  obligee,  without  the  possibility  of 
a  representative,  the  obligation  ceases.  Such  appears  to  be  the 
case  on  the  dissolution  of  a  corporation  aggregate.  Blackstone 
says,  "  the  debts  of  a  corporation,  either  to  or  from  it,  are  totally 


864     FUTURE  ESTATES  AND  INTERESTS  IN   LAND.     [PT.  IV.  CH.  VI. 

extinguished  by  its  dissolution;  so  that  the  members  thereof  cannot 
recover,  or  be  charged  with  them,  in  their  natural  capacities.  1  Bl. 
Com.  484.  2  Kyd  on  Cor.  516,  uses  the  same  language.  2  Bac.  t>2, 
advances  nearly  the  same  doctrine,  on  the  authority  of  Lev.  237; 
Owen,  73;  and  2  And.  107.  And  this  doctrine  is  either  directly  or 
indirectly  supported  in  a  variety  of  cases.  See  the  before-mentioned 
case  of  Colchester  v.  Seaber.  Also  Rex  v.  Pasmore,  3  T.  R.  199;  The 
Mayor,  etc.,  of  Scarborough  v.  Butler,  3  Lev.  237;  4  Com.  Dig.  273. 
If  this  doctrine  be  correct,  and  we  find  it  uncontradicted,  the  seizure 
of  the  rights  and  credits  of  the  corporation  is  impossible  in  the 
nature  of  things;  because  their  existence  ceases  as  the  claim  of  the 
State  commences.  But  even  if  they  could  be  seised  into  the  hands 
of  the  State  they  would  be  unavailing.  The  debts  due  to  the  cor- 
poration could  not,  on  any  common-law  principle,  be  collected  by 
the  State,  or  its  agent;  there  being  no  privity  of  contract,  either  in 
fact  or  law,  between  the  State  and  the  debtor  to  the  corporation. 
It  is  true,  that  when  the  powers  of  the  corporation  have  lain  dor- 
mant for  many  years,  and  have  afterwards  been  revived  by  a  new 
charter,  they  have  been  considered  capable  of  collecting  debts 
formerly  due  to  them.  This  was  the  case  in  Colchester  v.  Seaber. 
And  even  when  the  name  of  the  corporation  has  been  changed  by 
letters  patent,  they  have  collected  debts  due  them  by  their  former 
name.  This  was  done  in  The  Mayor,  etc.,  of  Scarborough  v.  Butler. 
But  these  cases  were  decided  on  the  principle  that  the  corporation 
that  sued  was,  virtually  and  substantially,  the  same  body  that  made 
the  contract,  and  to  whom  the  obligation  was  properly  due.  But 
such  is  not  the  case  with  the  State.  It  has  no  connection  with  the 
obligor  or  the  obligation,  and  cannot  recover  the  debt  by  suit.  Nor 
does  the  act  of  Assembly,  authorizing  the  collection  of  the  corpora- 
tion debts  by  commissioners  to  be  appointed  for  that  purpose,  make 
any  alteration  in  the  case.  This  act  was  not  intended  to  make  a 
new  law  to  regulate  those  debts  or  to  alter  the  principles  that  gov- 
erned the  corporation  contracts;  but  seems  founded  on  the  suppo- 
sition that  the  debts  would  become  due  to  the  State  by  the  seizure 
of  the  corporate  franchises,  and  therefor?  make  provision  for  hav- 
ing them  collected  by  commissioners.  There  is  nothing  in  the  act 
<  ah  ulated  to  give  those  debts  a  continued  existence  after  the  disso- 
lution of  the  corporation.  The  act  only  presumes  they  would  by 
law  have  such  an  existence,  and  therefore  makes  a  disposition  of 
them.  The  debts  must,  therefore,  be  considered,  on  common-law 
principles,  unaffected  by  the  act;  and  therefore  subject  to  extin- 
guishment by  a  dissolution  of  the  corporation. 


I.   i.]  KINDS    OF   FUTURE    ESTATES  :    REMAINDERS.  865 

Thus,  in  no  view  of  the  case,  can  that  part  of  the  judgment  which 
directs  a  seizure,  into  the  hands  of  the  State,  of  the  goods  and 
chattels,  rights,  credits,  and  effects,  lands,  tenements,  and  heredita- 
ments of  the  corporation,  be  supported  ' 


Rapallo,  J.,  in  HEATH  v.  BARMORE. 
50  New  York,  302,  (505).  — 1872. 

In  so  far  as  the  plaintiff's  right  to  recover  in  this  action  is  sought 
to  be  sustained,  on  the  ground  that  at  common  law  real  estate  held 
by  a  corporation  at  the  time  of  its  dissolution  reverts  to  the  grantor, 
it  cannot  be  supported  for  two  reasons:  First,  because  the  plank- 
road  company  has  not  been  dissolved,  and  secondly,  because  the  f 
rule  of  law  invoked  by  the  plaintiff  does  not  prevail  in  this  State  in 
respect  to  stock  corporations.  Under  the  provisions  of  1  R.  L.  248, 
and  iR.S.  600,  §§  9  and  10,  upon  the  dissolution  of  a  corporation,  the 
directors  or  managers  at  that  time  become  trustees  of  its  property, 
unless  some  other  custodian  is  appointed,  for  the  purpose  of  paying 
the  debts  of  the  corporation  and  dividing  its  property  among  its 
stockholders;  and  these  provisions  apply  as  well  to  the  real  as  to 
the  personal  property  of  corporations.  Otven,  Receiver,  v.  Smith,  31 
Barb.  641;  2  Kent  Com.  307  and  308;  notes  371  and  372  of  n  ed. ; 
Angell  and  Ames  on  Corporations,  §  799,  a,  5th  ed. ;  46  Barb.  365. 
Consequently,  where  lands  are  conveyed  absolutely  to  a  corporation 
having  stockholders,  no  reversion  or  possibility  of  a  reverter 
remains  in  the  grantor. 

The  conveyances  to  the  plank-road  company  in  this  case  appear 
to  have  been  absolute  conveyances  —  no  condition  or  limitation  of  f 


the  estate  seems  to  have  been  contained  in  them,  and  they  therefore 
passed  the  whole  estate  of  the  grantor.     2  R.  S.,  748,  §  1. 


(2.)  Feudal  Forfeitures. 

(a.)  For  denying  tenure. 

(b.)  For  felony. 


1  See  the  dicta  in  Nicoll  v.  R.  R.  Co.,  p.  527,  supra.  See  also  Wentworth  v.  Payne, 
74  N.  Y.  196  (200).  This  supposed  rule  that  land  undisposed  of  by  a  corporation 
returns  to  the  grantor  when  the  corporation  is  dissolved  is  usually  regarded  as 
a  part  of  the  feudal  doctrine  of  escheats.  For  a  discussion  of  the  origin  and 
validity  of  the  rule,  see  Gray's  Rule  Against  Perpetuities,  §§  44-51.  — Ed. 

LAW    OF    PROP.    IN    LAND —  55 


866    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CII.  VI. 

(3.)  The  Possibility  of  Reverter  in  Case  of  a  Fee  upon  Special  Limitation. 
LEONARD  v.  BURR. 
18  New  York,  96.  —  1858. 
{Reported  herein  at  p.  521.] 


Allen,  J.,  in  FIRST  UNIVERSALIST  SOCIETY   v.  BOLAND. 

155  Massachusetts,  171.  —  1892. 
{Reported  herein  at  p.  525.] 


(4.)  The  Contingent  Right  of  Re-entry  in  Case  There  Should  be  a  Breach 
of  a  Condition  Subsequent.1 

NICOLL  v.  NEW  YORK  AND  ERIE  R.   R.  CO. 

12  New  York,  121.  —  1854. 
{Reported  herein  at  p.  527.] 


UPINGTON  v.  CORRIGAN. 

151  New  York,  143. —  1896, 
[Reported  herein  at  p.  533.] 


2.   Remainders.2 

a.    Vested  remainders. 

GREEN  v.  HEWITT. 

97  Illinois,  113.  —  1880. 


Bill  for  a  partition.  William  Thompson  died  seised  of  the  lands 
in  controversy,  leaving  him  surviving  his  widow,  Elizabeth,  and  his 
daughter,  Mary.      He  left  a  will  of  which  the  material  portion  is  set 

1  This  also  is  sometimes  called,  but  improperly,  a  "  right  of  reverter."  —  Ed. 

2"A  remainder  is  a  remnant  of  an  estate  in  land,  depending  upon  a  particu- 
lar prior  estate,  created  at  the  same  time,  and  by  the  same  instrument,  and 
limited  to  arise  immediately  on  the  determination  of  that  estate  and  not  in 
abridgment  of  it."  4  Kent's  Com.  K)7.  This  definition  of  a  common-law 
remaindei  involves  the  following  essential  features,  usually  stated  separately: 
(l)  1  nat  a  remainder  is  created  by  express  limitation,  — cannot  arise  by  opera- 
tion of  law.     (2)  That  a  remainder  must  depend  on  a  particular  estate  created 


I.  2.]  KINDS   OF   FUTURE    ESTATES:    REMAINDERS.  867 

out  in  the  opinion.  Mary  married  Henry  Abbott  and  died,  leaving 
her  husband  and  one  child  her  surviving;  the  child  died  later  under 
age,  leaving  its  father  its  only  heir-at-law.  Elizabeth  married  as  her 
second  husband,  Benjamin  Green,  and  is  now  deceased,  leaving 
Green  and  her  three  sisters  her  surviving.  One  of  the  sisters  brings 
this  suit,  claiming  that  Elizabeth  died  seised  of  a  fee. 

Mulkey,  J.  — The  whole  controversy  in  this  case  turns  upon  the 
construction  to  be  given  to  the  second  clause  of  the  will  of  William 
C.  Thompson,  through  which  all  the  parties  claim.  It  is  as  follows: 
"  Second.   After  the  payment  of  such  debts  and  funeral  expenses,  I 

by  the  same  livery  or  deed.  (3)  That  a  remainder  must  not  be  so  limited  as  to 
cut  short  the  particular  estate  before  its  natural  termination.  (4)  That  a 
remainder  must  be  ready  to  take  effect  in  possession  immediately  upon  the  ter- 
mination of  the  particular  estate  upon  which  it  depends. 

From  (3),  above,  it  follows  that  a  remainder  cannot  be  limited  after  an  estate 
at  will  or  by  sufferance,  nor  after  an  estate  in  fee  unless  such  estate  be  a  fee- 
tail.  A  remainder  (so  called)  limited  after  an  estate  for  years  is  but  a  quasi- 
remainder,  for  the  seisin  is  in  the  "  remainderman,"  the  possession  of  the 
tenant  is  that  of  the  "  remainderman  "  in  this  respect.  As  will  be  seen,  an 
estate  for  years  will  not  support  a  contingent  remainder. 

An  estate  for  years,  being  but  a  chattel,  could  not  at  common  law  be  divided 
up  into  a  particular  estate  and  a  remainder  limited  thereon.  But  see  §  40, 
N.  Y.  R.  P.  L. 

Modern  statutes  have  modified  many  of  these  rules.  (1)  The  New  York 
Revised  Statutes  of  1830  broadened  the  scope  of  the  term  remainder.  "  Where 
a  future  estate  is  dependent  on  a  precedent  estate,  it  may  be  termed  a  remain- 
der, and  may  be  created  and  transferred  by  that  name."  R.  P.  L.,  §  28. 
"A  remainder  may  be  limited  on  a  contingency,  which,  if  it  happens,  will 
operate  to  abridge  or  determine  the  precedent  estate;  and  every  such  remainder 
shall  be  a  conditional  limitation."  §  43,  R.  P.  L.  Thus  it  will  be  seen  that 
shifting  executory  estates  (see  below)  have  become  in  New  York  one  class  of 
"  remainders."  (It  is  to  be  observed  here  that  the  N.  Y.  Real  Property  Law  of 
1896  (ch.  547)  is  a  re-enactment  of  that  portion  of  the  Revised  Statutes  relating  to 
real  property,  with  few  material  changes  and  that  the  N.  Y.  R.  S.  on  these 
topics  were  substantially  re-enacted  in  Michigan,  Minnesota  and  Wisconsin, 
and  have  influenced  the  legislation  of  many  other  States.)  In  Georgia  it 
appears  that  any  future  estate,  even  a  springing  use  or  springing  executory 
devise,  is  a  "  remainder."  Code,  1895,  §  309S.  (2)  A  "  remainder  "  may  be  so 
limited  as  to  cut  short  the  preceding  estate  (§  43,  N.  Y.  R.  P.  L.)  and  may, 
therefore,  be  limited  after  a  fee  on  condition.  (3)  A  "  remainder,"  to  be  valid, 
need  not  be  ready  to  take  effect  in  possession  immediately  upon  the  determina- 
tion of  the  particular  estate.     See  §§  47,  48. 

While  reversions  have  everywhere  been  preserved  unchanged  it  would  seem 
that  other  estates  in  expectancy  are  to  be  classed  in  most  of  the  States  as  either 
"  remainders  "  or  "  estates  limited  to  commence  in  possession  at  a  future  day 
without  the  intervention  of  any  precedent  estate,"  in  other  words  "  springing  " 
future  estates.  For  the  New  York  classification,  see  the  R.  P.  L.,  §^  25,  29, 
43.  —  Ed. 


868    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CM.  VI. 

give  and  bequeath  to  my  beloved  wife,  Elizabeth  Thompson,  the 
farm  on  which  we  now  reside,  situate  in  said  county,  and  known  and 
described  as  the  northeast  quarter  of  the  southwest  quarter  of  sec- 
tion seven,  township  fifteen,  range  thirteen,  also  all  my  personal 
property  of  every  description,  so  long  as  she  remains  my  widow;  at 
the  expiration  of  that  time  the  whole,  or  whatever  remains,  to 
descend  to  my  daughter,  Mary  Thompson."  [  The  court  held  that  the 
limitation  of  the  estate  during  widowhood  applied  to  the  real  as  well  as  the 
personal  property  and  that  the  expression  "whatever  remains  "  is  of  no 
vital  significance,  and  proceeds  as  follows  .•] 

It  is  further  claimed  by  plaintiffs  in  error  that  the  estate  of  the 
daughter  was  a  contingent  remainder,  and  that  inasmuch  as  she  died 
before  the  termination  of  the  particular  estate  which  supported  it,  it 
never  vested  at  all.  Counsel  are  entirely  mistaken  in  this  view. 
The  estate  of  the  daughter  had  not  a  single  element  in  it  that  distin- 
guishes a  contingent  from  a  vested  remainder.  There  was  certainly 
no  uncertainty  as  to  the  person  who  was  to  take.  It  was  Mary 
Thompson,  the  daughter,  clearly.  And  the  time  of  her  taking  in 
possession  was  equally  certain,  namely,  when  Elizabeth  Thompson 
ceased  to  be  the  widow  of  the  testator,  whether  it  was  effected  by 
death  or  a  second  marriage. 

A  clearer  example  of  a  vested  remainder  could  scarcely  be  con- 
ceived. But  admitting,  for  argument's  sake,  plaintiffs  in  error  are 
right  upon  this  question,  the  admission  is  certainly  fatal  to  their 
right  of  recovery;  for,  if  the  daughter  took  a  contingent  remainder, 
of  necessity  the  widow  could  not  have  taken  a  fee,  and  their  right 
of  recovery  rests  entirely  upon  the  hypothesis  that  she  took  a  fee 
simple  title  under  the  will. 

We  are,  in  any  view,  clearly  of  opinion  that  the  decree  of  the 
Circuit  Court  was  right,  and  it  is  therefore  affirmed. 

Decree  affirmed.1 


/'.    Contingent  remainders.'1 
HENNESSY  v.  PATTERSON. 


S5  New  York,  91.  —  i38i. 

Ejectment  to  recover  the  possession  of  certain  premises  in  Brook- 
lyn. The  rights  of  the  parties  depend  upon  the  construction  of  a 
will  the  material  parts  of  which  are  as  follows: 

"  First.    After  all  my  lawful  debts  are  paid  and  discharged,  I  give 

1  Sec  also  Jackson  ex  dent.  Wells  v.  Wells,  p.  513,  supra.  —  Ed. 
'■'Tin-  theory  of  the  common  law  future  estates  (reversions  and  remainders)  is 
based  on    the  idea   that   there   must  always   be  some  one  seised  of  an  estate  of 


I.  2.]  KINDS   OK    FUTURE   ESTATES:    REMAINDERS.  869 

and  bequeath  to  my  dear  wife,  Catherine  Healey,  the  house  and  lot 
in  which  I  now  reside,  and  which  house  and  lot  I  now  own  and 
which  house  and  lot  is  situated  on  the  northerly  side  of  Luqueer 
street,  in  the  twelfth  ward,  in  the  city  of  Brooklyn,  aforesaid.  The 
said  described  property  is  to  be  held  by  my  said  wife,  after  my 
death,  to  and  for  the  chief  purpose  of  keeping  and  protecting  the 
same  for  her  own  and  my  daughter's  benefit;  provided,  however, 
that  my  said  wife  shall  prudently  use  the  rents  and  benefits,  if  any 
there  may  be,  of  said  property  for  the  maintenance  and  support  of 
herself  and  said  daughter;  and  also,  that  my  said  wife  shall  be  and 
act  as  the  sole  guardian  and  protector  of  my  said  daughter  as  long 
as  she  remains  unmarried;  but  if  she,  my  said  wife,  should  get  mar- 
ried, or  otherwise  commit  acts  contrary  to  the  wishes  of  my 
executors  herein  named,  then  my  executors  shall  have  the  power  to 
have  the  control  of  said  property  taken  from  my  said  wife,  and  also 
the  guardianship  of  my  said  daughter.  This  use  and  privilege  of  my 
said  property  to  my  said  wife  is  in  lieu  of  her  dower  right. 

"  Second.  I  also  wish  and  will  that  if  my  said  daughter  Margaret 
should  get  married,  or  die  without  leaving  any  children,  and  that* 
her  husband  should  live  after  her  death,  he  shall  not  inherit  the  said 
property  or  any  part  thereof;  but  if  there  are  any  children  born  of 
my  daughter,  and  living  after  her  death,  the  property  shall  be  theirs, 
share  and  share  alike,  and  managed  accordingly  by  my  executors. 

"  Third.  I  wish  and  will,  that  should  my  said  daughter  Margaret 
die  without  leaving  any  issue,  then  the  said  property  shall  be  left  to 
my  nephew,  John  Foley." 

freehold  in  the  land,  and  upon  the  fact  that  a  freehold  estate  to  commence  in 
futuro  could  be  created  only  in  connection  with  a  present  livery,  for  a  present 
freehold  interest,  to  a  person  other  than  the  one  in  whom  the  future  interest  is 
to"  vest."  Estates  less  than  freehold  have  no  true  relation  to  the  system  of 
future  estates,  except  as  the  "  possession  "  of  the  leasehold  tenant  constitutes 
one  element  in  the  "  seisin  "  of  the  landlord. 

Interests  of  freehold  succeeding  one  another  in  time  must,  therefore,  as  they 
come  into  possession  vest  or  clothe  (vestire)  their  holders  with  successive  por- 
tions of  the  seisin  of  the  fee.  But  he  who  has  a  present  fixed  right  to  a  future 
freehold  is  said  to  have  an  estate  vested  in  interest,  or  vested  simply. 
A  remainder  is  "  contingent  "  if  it  is  subject  to  some  condition  precedent  (which 
may  or  may  not  happen,  either  at  all  or  within  a  given  time)  other  than  the 
natural  determination  of  the  precedent  particular  estate;  "  vested  "  if  it  is  sub- 
ject to  no  other  condition  precedent  than  that  jusr  indicated.  A  remainder  then 
may  be  contingent  because  the  person  who  is  to  take  it  is  not  yet  ascertained,  or 
because,  the  person  being  known,  his  right  to  the  future  enjoyment  of  the  estate 
is  dependent  upon  a  contingent  event.  Either  a  vested  or  a  contingent  remain- 
der may  be  defeasible  by  reason  of  a  condition  subsequent,  but  this  does  not 
alter  its  original  character.  —  Ed. 


870    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

The  testator's  widow  died  in  1874.  His  daughter  Margaret  there- 
after married  the  plaintiff.  Foley  died  in  1876,  and  Margaret  died 
in  1878,  leaving  no  issue  surviving  Margaret,  prior  to  her  death, 
conveved  the  premises  to  one  Battersberry,  who  conveyed  to  plain- 
tiff. In  an  action  of  partition  between  the  heirs  of  John  Foley, 
defendant  was  appointed  receiver. 

Finch,  J.  — The  general  intention  of  the  testator,  in  this  case,  is 
very  plain.  Having  a  wife,  and  an  unmarried  daughter,  he  desired 
to  secure  to  them  during  their  lives  the  full  benefit  of  the  use  and 
income  of  his  property;  but  dreading  the  influence  and  possible 
selfishness  of  a  husband  of  either,  he  aimed  at  a  disposition  which 
would  make  it  impossible  for  such  husband  to  obtain  any  interest  in, 
or  control  over,  the  estate  devised.  To  effect  this  purpose,  he  took 
from  the  widow,  in  the  event  of  her  remarriage,  the  management  of 
the  property  and  also  the  guardianship  of  his  daughter  and  vested 
both  in  his  executors.  In  the  event  of  the  daughter's  marriage,  he 
provided  that  her  husband  should  not  inherit  the  property,  nor  any 
*  part  thereof,  and,  as  a  mode  of  securing  that  result,  he  gave  no 
estate  to  the  daughter  in  express  terms,  but  directed  that  upon  her 
death  it  should  go  to  her  issue  then  living,  or,  in  default  of  such 
issue,  then  to  the  testator's  nephew,  John  Foley.  The  will  was  evi- 
dently intended  to  bar  the  possible  interest  of  a  successor,  or  son- 
in-law,  and  keep  from  the  hands  of  strangers,  not  of  the  testator's 
blood,  the  property  gained  by  his  care  and  labor.  Whatever  else 
may  be  true  of  the  case,  this  purpose  and  intention  is  distinct  and 
plain,  and  must  have  its  proper  weight  in  determining  the  construc- 
tion of  the  will.  The  claim  of  the  plaintiff,  if  sustained,  overrides 
that  intention,  and  renders  nugatory  and  useless  the  precautions 
of  the  testator;  for  it  is  the  husband  of  the  daughter  who  now 
claims  the  absolute  ownership  of  the  estate  and  seeks  to  wrest  it 
from  the  possession  of  the  children  of  the  nephew. 

As  to  the  proper  construction  of  the  will  the  parties  differ  widely. 
The  theory  of  the  plaintiff  is,  that  the  widow  had  a  life  estate,  and 
the  daughter,  Margaret,  took  the  fee  by  descent,  such  fee  subject, 
however,  to  be  determined  by  the  presence  of  issue  living  at  her 
death,  or  in  default  of  such  issue  living  at  that  date,  subject  to  the 
right  of  Foley  to  take  the  fee  if  he  should  be  living  at  the  death  of 
Margaret;  but  that  in  case  both  of  the  prescribed  failure  of  issue. 
and  the  survivorship  of  Foley  at  the  happening  of  that  contingency, 
the  fee  inherited  by  Margaret  lost  its  base  or  determinable  quality, 
and  became  a  fee  simple  absolute,  which,  through  Margaret's  deed 
in  her  lifetime,  passed   as  such  to  her  husband.      In  this  view  of  the 


T.  2.]  KINDS   OF    FUTURE    ESTATES:    REMAINDERS.  871 

will  the  devise  to  Foley  is  deemed  a  contingent  remainder,  vesting 
neither  in  interest  nor  possession  until  the  happening  of  two  uncer- 
tain events,  viz.,  the  death  of  Margaret  without  issue  living,  and 
the  survival  of  Foley  at  the  date  of  such  death.  This  construction 
bars  utterly  the  heirs  of  Foley,  and  reduces  his  right  to  a  mere  pos- 
sibility of  acquiring  an  estate,  which  lapsed  by  his  death  in  the  life- 
time of  Margaret. 

The  theory  of  the  defendant  is  that  the  widow  took  a  life  estate, 
then  Margaret  a  life  estate,  with  remainder  in  fee  to  John  Foley, 
vesting  in  interest  at  the  death  of  the  testator,  and  in  possession  at 
the  death  of  Margaret  without  issue  living,  but  liable  to  be  divested 
by  the  existence  of  such  issue  living  at  her  death.  The  estate  of 
Foley  is  claimed  to  be  a  vested  remainder,  affected  in  no  manner  by 
his  death  before  Margaret,  but  in  that  event  descending  to  his  heirs 
who  thereby  took  the  entire  estate. 

The  argument  on  both  sides  draws  largely  upon  the  provisions  of 
the  common  law,  as  explanatory  of  the  changes  effected  by  the 
Revised  Statutes,  and  some  brief  consideration  of  what  would  have 
been  the  operation  of  the  former  upon  the  devise  in  question  may 
aid  us  in  the  application  of  the  modified  enactments. 

The  first  difficulty  in  the  defendant's  position,  as  affected  by  the 
language  of  the  will,  would  have  arisen  in  the  absence  of  a  precedent 
estate  to  support  the  remainder  to  Foley.  The  general  rule  was 
that  no  remainder  could  be  created  without  a  particular  estate  to 
support  it,  and  must  have  been  so  limited  as  to  take  effect  on  the 
regular  and  natural  determination  of  the  precedent  estate.  2  Washb. 
R.  E.  503.  That  rule  would  be  fatal  in  the  present  case  to  the 
remainder  of  Foley,  if  the  sole  estate  preceding  it  was  the  life  estate 
of  the  widow,  for  that  estate  might  end,  and  in  fact  did  end,  before 
the  daughter,  Margaret,  died,  and,  therefore,  before  the  contingency 
upon  which  Foley's  estate  depended  had  occurred.  If  to  meet  this 
difficulty  resort  is  had  to  the  plaintiff's  theory,  that  besides  the  life 
estate  of  the  widow,  there  was  in  Margaret  a  qualified,  base  or 
determinable  fee,  coming  to  her  by  descent,  we  are  baffled  by, 
another  rule  of  the  common  law  that  a  remainder  could  not  be 
limited  on  a  base  or  determinable  fee  which  had  vested  in  interest. 
Lalor,  65.  It  is  possible,  however,  that  a  just  construction  of  the 
will  would  give  to  Margaret  a  life  estate  by  implication.  The  use  of 
the  property,  until  her  death,  was  probably  intended  for  her  as  well 
as  her  mother.  While  the  widow  lived  she  was  to  have  the  use  of 
the  property  for  the  joint  benefit  of  herself  and  her  daughter,  unless 
she  remarried.  In  that  event  the  executors  were  to  have  the  control 
of  the  estate.      This  provision  was  evidently  aimed  at  the  protection 


872    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

of  Margaret,  and  indicates  a  purpose  to  secure  her  maintenance  out  of 
the  income.  It  may  be  possible,  therefore,  to  say,  as  the  respondent 
contends,  that  after  the  death  of  the  widow,  the  right  of  Margaret 
to  the  income  and  profits  of  the  estate  for  her  support  and  mainten- 
ance remained.  In  that  event,  the  difficulty  we  have  mentioned 
would  disappear,  because  a  precedent  life  estate  in  Margaret  would 
have  remained  until  her  death,  and  sustained  the  remainder  to  her 
issue  or  to  Foley.  If  it  be  then  objected  that  such  devise  to  the 
daughter  for  life,  with  remainder  to  her  issue  is,  at  common  law, 
turned  into  a  fee  in  the  daughter  by  the  operation  of  the  rule  in 
Shelley's  Case,  upon  the  ground  that  the  word  issue  is  used  as  the 
equivalent  of  heirs,  and  is  here  a  word  of  limitation  and  not  of  pur- 
chase In  re  Sanders,  4  Paige,  293;  2  Washb.  on  Real  Prop.  569,  the 
answer  is  that  the  rule  applied  only  to  the  case  of  the  first  taker, 
and  not  to  the  use  of  the  word  in  a  case  like  the  present.  Cushney 
v.  Henry,  4  Paige,  345,  citing  Finch's  Ch.  280,  and  Coke's,  263, 
note  15. 

If  the  difficulties  of  the  common  law  seem  thus  far  obviated,  they 
become  more  serious  as  we  approach  a  consideration  of  the  nature 
and  character  of  the  devise  over  to  Foley.  Alternative  estates,  or 
contingencies  with  a  double  aspect,  as  they  are  sometimes  called, 
were  permissible  and  recognized  before  the  Revised  Statutes 
expressly  authorized  their  creation.  They  were  unobjectionable, 
because  only  one  could  vest,  and  the  happening  of  the  contingency 
merely  substituted  one  for  the  other,  and  in  no  respect  prolonged 
any  restraint  upon  alienation.  Luddington  v.  Kime,  1  Ld.  Raymond, 
203;  Doe  v.  Holme,  2  Black.  777.  If,  therefore,  Foley  had  been 
alive  at  the  death  of  Margaret,  it  seems  possible  to  put  a  construc- 
tion upon  the.  will  which  would  have  given  him,  at  that  date,  even 
at  common  law,  a  vested  remainder  which  would,  of  course,  have 
descended  to  his  heirs.  But  he  died  before  Margaret,  and  whether, 
for  that  reason,  his  estate  lapsed,  or  was  of  such  character  that  it 
descended  to  his  heirs,  so  that  they  took  upon  the  happening  of  the 
contingency  as  succeeding  to  all  his  rights,  becomes  a  very  important 
question.  Before  the  Revised  Statutes,  his  estate  would  have  been 
a  contingent  remainder,  or,  at  least,  good  by  way  of  executory 
devise;  for,  even  if  Margaret  had  not  a  life  estate,  but  a  base  or 
determinable  fee,  so  that  a  remainder  in  fee  could  not  be  limited 
upon  it,  the  limitation  to  Foley  would  have  been  good  as  an  execu- 
tory devise.  Jackson  v.  Staats,  11  Johns.  348;  Sherman  v.  Sherman, 
5  Barb.  385;  Maurice  v.  Graham,  8  Paige,  486.  Viewed  in  either 
aspect,  his  estate  was  descendible,  unless  his  survivorship  of  Mar- 
garel  was  an  element  of  the  contingency  upon  which  his  estate  was 


I.   2.]  KINDS    OF    FUTURE    ESTATES:    REMAINDERS.  873 

limited.  Pinbury  v.  Elkin,  1  Peere  Williams,  563;  Moor  v.  Hawkins, 
2  Eden's  Ch.  341;  Winslowv.  Goodwin,  48  Mass.  374.  Of  contingent 
remainders,  a  very  accurate  writer  says  (Washburn  on  Real  Prop- 
erty, 549)  that  at  common  law,  before  the  contingency  happens, 
they  cannot  be  conveyed,  except  by  way  of  estoppel;  but,  where  the 
person  who  is  to  take  the  remainder  if  it  becomes  vested,  is  ascer- 
tained, and  he  dies,  it  will  pass  to  his  heirs  and  may  be  devised  by 
him.  And,  as  to  the  interest  of  an  executory  devisee,  the  same 
writer  says  that  contingent  and  executory  estates,  and  possibilities 
accompanied  with  an  interest,  are  descendible  to  the  heir  or  trans- 
missible to  the  representative.  Ibid.  662.  Of  course,  the  rule  can- 
not apply  where  the  survivorship  of  the  devisee  at  the  happening  of 
the  contingency  is  itself  a  contingency  upon  which  the  devise  is 
limited.  That  is  claimed  to  be  the  situation  here,  and  it  becomes 
apparent  that,  even  at  common  law,  the  one  vital  question  in  the 
case  is  whether,  by  the  terms  and  intent  of  the  will,  Foley  was  only 
to  take  upon  the  contingency  that  he  survived  Margaret,  in  addition 
to  the  contingency  that  the  latter  should  die  without  issue  living  at 
the  date  of  her  death. 

If  now  we  test  the  case  by  the  simpler  provisions  and  definitions 
of  the  Revised  Statutes,  we  shall  find  that  the  same  question  con- 
fronts us  as  the  pivotal  point  in  the  case.  What  has  been  said  of  the 
common-law  rules  shows,  at  least  in  some  directions,  the  difficulties 
which  the  revisers  sought  to  remove  and  the  force  and  effect  of  the 
radical  change  which  they  wrought.  A  remainder  no  longer  fails 
by  reason  of  the  determination  of  the  precedent  estate  before  the 
happening  of  the  contingency  upon  which  it  is  to  vest,  and  a  life 
estate  in  Margaret  ceases  to  be  necessary  to  support  the  remainder 
of  Foley.  A  fee  may  be  limited  on  a  fee  upon  a  contingency  which, 
if  it  should  occur,  must  happen  within  the  limits  of  the  prescribed 
period,  so  that  even  if  Margaret  took  a  base  or  determinable  fee  by 
descent  the  limitation  over  to  Foley  was  possible.  Alternative 
estates,  where  upon  the  failure  of  one  to  vest,  the  next  in  succession 
shall  vest,  are  expressly  recognized;  and  all  future  estates  are  made 
in  terms  descendible,  devisable  and  alienable,  like  estates  in  posses- 
sion. Not  only  are  difficulties  thus  removed  and  doubts  solved,  but 
future  estates,  like  that  devised  to  Foley,  are  expressly  authorized 
and  defined.  Estates,  in  respect  to  the  time  of  their  enjoyment,  are 
divided  into  estates  in  possession  and  estates  in  expectancy.  The 
latter  are  declared  to  be  those  in  which  the  right  of  possession  is 
postponed  to  a  future  period,  and  are  further  divided  into  future 
estates  and  reversions.  A  future  estate  dependent  on  a  precedent 
estate  is  termed  a  remainder,  and  that  may  be  either  vested  or  con- 


874    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

tingent.  It  is  vested,  when  there  is  a  person  in  being  who  would 
have  an  immediate  right  to  the  possession  of  the  lands  upon  the 
ceasing  of  the  intermediate  or  precedent  estate  and  is  contingent 
whilst  the  person  to  whom,  or  the  event  upon  which  it  is  limited  to 
take  effect  remains  uncertain.  R.  S.  Part  2,  chap.  1,  tit.  2,  art.  i.1 
Tested  by  these  definitions  the  estate  of  Foley  is  to  be  deemed  a 
contingent  remainder,  vesting  as  a  right  upon  the  death  of  the  testa- 
tor, and  in  interest  and  possession  upon  the  death  of  Margaret  with- 
out issue  living,  unless,  indeed,  the  survivorship  of  Foley  is  made  by 
the  terms  of  the  will  an  additional  and  further  contingency.  We 
are  thus  brought  again  to  what  we  have  already  described  as  the 
pivotal  question  in  the  case,  and  it  is  necessary  now  to  consider  it. 
Reliance  is  placed  upon  the  mention  of  Foley  by  name  without  allusion 
to  his  heirs.  But  the  omission  was  not  material.  Without  such 
words  in  a  devise  the  fee  would  pass  unless  an  intent  should  appear 
in  the  will  by  express  terms  or  necessary  implication,  to  pass  a  less 
estate.  4  Kent's  Com.  7;  1  R.  S.  (Edm.)  §  1,  p.  699.  Some  stress 
is  laid  upon  the  language  of  the  devise  to  Foley,  which  was  in  these 
words:  "  Should  my  daughter  Margaret  die  without  leaving  any 
issue,  then  the  said  property  shall  be  left  to  my  nephew,  John 
Foley."  The  argument  is  that  the  word  "  should  "  implies  a  con- 
tingency, and  the  expression  "should  she  die,"  standing  alone,  is 
inaccurate,  since  death  at  some  time  is  certain  and  inevitable. 
Therefore,  it  is  said,  the  contingency  referred  to  must  be  that  of 
time;  death  before  Foley.  This  construction  utterly  overlooks  the 
real  contingency  named  in  the  will,  and  substitutes,  or  rather  adds, 
one  not  there  at  all.  The  contingency  named  by  the  testator  was, 
should  she  die  without  issue  living  at  her  death.  That  was  the 
uncertainty  to  which  he  referred,  and  for  which  he  meant  to  provide; 
and  the  word  "  then  "  plainly  refers  to  the  event;  to  the  happening 
of  that  contingency;  and  not  to  the  time  at  which  Foley's  right 
should  commence.  It  is  said  that  Foley  was  expected  by  the 
testator  to  survive  Margaret,  and  the  principal  reason  assigned  is 
that  Foley  was  named  as  one  of  the  executors,  and  the  will  provided 
that  after  the  death  of  Margaret,  leaving  issue,  the  estate  in  then 
was  to  be  "  managed  "  by  the  executors.  Nevertheless,  the  testator 
might  easily  have  contemplated  the  death  of  one  or  both  of  them, 
and  the  substitution,  if  necessary,  of  administrators  with  the  will 
annexed,  or  of  trustees.  The  provision  itself  was  awkward  and 
probably  would  have  proved  ineffectual.  But  if  such  expectation 
existed,  it  was  of  little  consequence  in  view  of  the  testator's  evident 
intention.      He  meant  to  keep  the   property  in  the  line  of  his  blood. 

1  N.  Y.  k.  P.  L.  §§  26-28,  30. —  Ed. 


I.   2.]  KINDS    OF    FUTURE    ESTATES:    REMAINDERS.  875 

Preferring  first  his  wife;  then  Margaret  and  her  issue;  he  next  casts 
the  estate  upon  the  nephew  and  his  heirs,  preferring  them  to  possible 
husbands,  or  strangers  to  his  blood. 

We  do  not  think,  therefore,  that,  by  the  terms  of  the  will,  Foley's 
estate  was  limited  upon  the  added  contingency  of  his  survival  of 
Margaret.  It  follows  that  his  right  was  descendible  to  his  heirs, 
both  at  common  law  and  under  the  statute,  unless  some  other  legal 
difficulty  intervenes. 

Such  difficulties  are  suggested.  The  one  founded  upon  the  doc- 
trine of  the  common  law,  that  the  heir  of  a  primary  devisee  can  never 
take  by  substitution  unless  the  estate  vests  in  such  primary  devisee, 
we  do  not  think  has  a  proper  application  to  the  case  before  us,  but 
if  it  has,  will  find  its  answer  in  the  changed  provisions  of  our  statutes, 
and  also  in  the  views  presently  to  be  taken  of  their  effect  upon  con- 
tingent remainders. 

But  a  further  difficulty  is  founded  upon  the  denial  to  the  estate  of 
Foley  of  any  descendible  quality,  upon  the  ground  that  it  never  vested 
in  him,  and  was  nothing,  in  fact,  but  the  possibility  of  acquiring  an 
estate.  The  logic  of  this  view  is  very  forcibly  presented  in  a  case 
similar  to  and  yet  different  from  the  one  before  us,  by  the  dissent- 
ing opinion  of  Grover,  J.  Moore  v.  Littel,  41  N.  Y.  66.  The  court 
did  not  concur  in  the  reasoning,  or  the  conclusion  to  which  it  led. 
Followed  steadily  to  its  logical  consequences,  it  would  apparently 
take  out  of  the  operation  of  the  statute  a  large  class  of  future  estate, 
upon  the  ground  that  they  are  mere  possibilities,  and  not  estates  at 
all.  The  collision  at  the  bottom  of  that  case  was  over  the  character 
of  a  contingent  remainder  limited  to  the  heirs  of  a  person  then  liv- 
ing. The  majority  of  the  court,  founding  their  opinion  upon  the 
definitions  of  the  Revised  Statutes,  and  their  express  authority,  held 
that  the  children  of  John  Jackson  had,  during  his  life,  and  notwith- 
standing the  uncertainty  of  their  ever  living  to  be  his  heirs,  an 
expectant  estate  which  could  be  aliened.  The  dissent  went  upon 
the  ground  that  such  children,  during  the  life  of  the  father,  had  no 
estate  at  all,  but  only  the  possibility  of  acquiring  one,  which,  there- 
fore, was  not  the  subject  of  a  conveyance.  The  case  differed  from 
the  one  under  consideration  in  many  respects,  but  at  least  settles 
the  question  that  such  a  contingent  right  as  was  devised  to  John 
Foley  is  within  the  definition  of  expectant  estates,  and  governed  by 
the  provisions  of  the  Revised  Statutes. 

It  is  true  that  to  allow  of  title  by  descent  there  must  be  some- 
thing to  descend;  and  what  that  is,  in  a  case  of  contingent 
remainder,  which  may  never  vest  either  in  interest  or  possession 
except   a    mere    possibility    of   acquiring    an    estate,    is    a  question 


876     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [FT.  IV.  CH.  VJ. 

which  the  mandate  of  the  statute  sufficiently  answers,  but  which 
may  also  be  answered  on  principle.  John  Foley  had  something 
more  than  a  mere  possibility  of  acquiring  an  estate;  he  had  the 
fixed,  absolute  right  to  have  the  estate  if  the  contingency  occurred. 
That  right  was  conferred  by  the  will  of  the  testator,  and  vested  in 
him  at  the  instant  of  the  latter's  death.  The  devisee  held  it  as  a 
vested  right,  but  such  a  right  as  the  contingent  and  uncertain 
character  of  the  devise  created;  nevertheless  a  fixed  and  vested 
right,  which  the  Revised  Statutes  recognize  as  an  estate,  place  in 
the  category  of  expectant  estates,  and  decree  shall  be  descendible, 
and  which,  as  we  have  already  seen,  was  descendible  even  at  com- 
mon law.  In  his  chapter  on  executory  devises  Washburn  reminds 
us  of  the  necessity  of  distinguishing  "  between  the  vesting  of  a  right 
to  a  future  estate  of  freehold,  the  vesting  of  a  freehold  estate  in 
interest,  and  the  vesting  of  the  same  in  possession."  2  Washburn 
on  Real  Property,  664. 

We  do  not  agree,  therefore,  with  the  opinion  of  the  General  Term, 
while  we  concur  in  the  result  of  their  decision.  They  held,  as  the 
respondent  claims,  that  Foley  took  a  vested  remainder,  subject  to 
be  divested  by  the  contingency  of  Margaret's  death,  leaving  issue, 
such  contingency  operating  as  a  condition  subsequent.  This  con- 
struction drives  us  to  give  Margaret  an  estate  for  life  by  implication, 
upon  a  very  doubtful  and  debatable  state  of  facts,  at  the  peril  of 
holding  that,  after  the  death  of  the  mother,  the  daughter  had  no 
interest  in  the  property  during  the  rest  of  her  life,  and  was  bound 
to  surrender  it  and  its  income  to  Foley.  We  do  not  accuse  the  testa- 
tor of  any  such  unreasonable  and  unexplainable  purpose. 

Nor  can  we  see  that  Foley  took  a  vested  remainder  under  the  defi- 
nition given  by  the  Revised  Statutes.  The  present  capacity  of  tak- 
ing effect  in  possession  if  the  possession  were  to  become  vacant,  was 
the  test  at  common  law.  Fearne  on  Rem.  (7th  ed.)  216.  When  the 
person  to  whom  a  remainder  after  a  life  estate  is  limited  is  ascer- 
tained, and  the  event  upon  which  it  is  to  take  effect  is  certain  to 
happen,  the  remainder  is  vested.  Williamson  v.  Field,  2  Sandf.  Ch. 
533  If,  at  the  ceasing  of  the  precedent  estate,  it  would  be  uncertain 
who  was  entitled  or  whether  the  event  upon  which  it  was  limited 
would  happen,  then  the  remainder  is  contingent.  Moore  v.  Li/tel, 
supra,  79.  Here  the  event  upon  which  Foley  was  to  take  at  all  was 
uncertain.  At  the  death  of  the  widow,  the  termination  of  the  prece- 
dent estate,  it  was  still  uncertain  if  Foley  would  ever  take,  and 
whether  he  should  or  not  depended  upon  a  contingency  yet  to 
happen.  It  is  possible  that,  by  giving  to  Margaret  a  life  estate  after 
the  death  of  the  widow,  the   case  might  be  brought  within  the  rule 


I.   2]  KINDS   OF    FUTURE    ESTATES:    REMAINDERS.  877 

stated  in  Moore  v.  Littel  by  Judge  Woodruff,  that  where  the  same 
event  —  in  this  case  the  death  of  Margaret  —  at  the  same  time,  eo 
instantly  terminated  the  precedent  estate,  and  settled  the  contin- 
gency, the  remainder  was  vested.  But  that  was  said  of  a  remainder 
to  the  heirs  of  one  living,  and  we  think  does  not  fairly  apply  to  the 
case  before  us.  And,  besides,  the  doctrine  was  not  assented  to  by 
three  of  the  judges,  and  the  case  was  really  decided  upon  the  ground 
(which  strongly  sustains  the  conclusion  we  have  reached)  that  the 
remainder  was  contingent,  but  nevertheless  an  expectant  estate,  as 
defined  by  the  Revised  Statutes,  and  as  such  alienable. 

We  conclude,  therefore,  in  this  case,  that  John  Foley  took  a  con- 
tingent remainder,  which  vested  in  him  at  the  death  of  the  testator 
as  a  right  according  to  its  character,  and  which  descended  to  his 
heirs,  so  that,  upon  the  death  of  Margaret,  leaving  no  issue,  the 
estate  vested  in  the  defendants.  The  objection  to  the  allowance  in 
addition  to  costs  presents  no  question  for  our  review. 

Judgment  affirmed. 


WHITESIDES  v.  COOPER. 

115  North  Carolina,  570  — 1894. 

Action  by  plaintiffs  to  be  let  into  possession  as  tenants  in  com- 
mon with  defendants  of  one-sixth  undivided  interest  in  the  premises 
in  dispute.  Plaintiffs  are  the  children  of  S.  J.  Whitesides,  who,  sup- 
posing himself  the  owner  of  a  vested  interest  in  the  lands,  had  sold 
them  to  one  Kimberly,  and  then,  under  a  partition  sale,  they  had 
passed  to  defendants.      Further  facts  appear  in  the  opinion. 

Shepherd,  C.  J.  —  The  numerous  authorities  cited  in  the  elaborate 
brief  of  the  defendant's  counsel  fail  to  convince  us  that  we  are  war- 
ranted in  so  far  departing  from  the  plain  and  natural  import  of  the 
language  used  in  the  limitation  before  us  as  to  hold  that  the  seven 
sons  named  in  the  will  of  their  father  took  a  vested  remainder  in 
the  land  therein  devised.  Fully  appreciating,  as  we  do,  the  public 
policy  which  induces  the  courts  to  favor  the  early  vesting  of  estates, 
we  are,  nevertheless,  of  the  opinion  that  it  would  be  doing  violence 
to  the  most  liberal  rules  of  construction  were  we  to  say  that  it  was 
the  intention  of  the  devisor  that  the  estates  limited  to  his  said  sons 
should  vest  before  the  death  of  his  widow,  the  life  tenant.  On  the 
contrary,  it  was  his  evident  purpose  that  the  entire  remainder  in  fee 
should  be  disposed  of  absolutely  at  a  definite  time,  and  that  he  did 
not  intend  that  the  remainder,  as  to  any  part  of  the  property,  should 


878    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

become  vested  while  the  remainder  in  the  residue  was  dependent 
upon  a  contingency. 

After  a  limitation  to  the  wife  for  life,  the  will  proceeds  as  follows: 
"  At  the  death  of  my  said  wife,  the  said  plantation,  with  all  its  rights 
and  interests,  I  bequeath  and  devise  to  our  seven  sons,  namely, 
Henry  Clay,  James  Hardy,  Charles  Lincoln,  Frank  Patton,  Simpson 
Jarrett,  William  Ratliff,  and  John  Bowman,  or  such  of  them  as  may  be 
living  at  their  mother  s  death,  and  to  their  heirs,  share  and  share  alike; 
and  if  any  one  or  more  of  our  said  sons  should  be  dead,  leaving 
lawful  issue,  said  issue  shall  take  the  deceased  father's  share  in  each 
and  every  such  case." 

The  words  we  have  italicized  very  clearly  do  not  divest,  by  way 
of  condition  or  otherwise,  any  estate  previously  limited,  but  are 
manifestly  used  as  a  part  of  the  description  of  the  persons  who  are 
to  take;  and  these  persons  are  plainly  such  only  of  the  sons  as  may 
survive  the  life  tenant.  In  other  words,  the  limitation,  with  a  very 
slight  transposition  of  the  words,  reads,  "  To  such  of  my  sons, 
Henry  Clay,  James  Hardy,  etc.,  as  may  be  living  at  their  mother's 
death,  and  to  their  heirs."  If  the  language  indicating  survivorship 
were  at  all  doubtful,  the  construction  we  have  adopted  would  be  well 
sustained  by  the  fact  that  the  words  of  inheritance  do  not  immediately 
follow  the  names  of  the  seven  sons,  but  they  follow  the  qualifying 
language,"  such  of  them  as  may  be  living  at  their  mother's  death." 

Under  the  construction  we  have  put  upon  the  will,  there  can  be 
no  question  that  the  limitations  to  the  sons  were  contingent  remain- 
ders, the  contingency  being  that  they  should  survive  their  mother, 
and  failing  in  this,  as  to  any  one  or  more  of  them,  the  remain- 
der to  vest  in  his  or  their  issue,  as  purchasers.  This,  as  we  have 
said  in  Watson  v.  Smith,  no  N.  C.  6,  is  a  limitation  of  several  con- 
current fees  by  way  of  substitutes  or  alternatives,  one  for  the  other, 
"  the  latter  to  take  effect  in  case  the  prior  one  should  fail  to  vest  in 
interest,  and  is  known  as  a  remainder  on  a  contingency  with  a 
double  aspect."  If  one  of  these  die  before  the  mother,  his  remain- 
der is  at  an  end,  and  can  never  vest,  and  another  remainder  to  the 
issue  is  substituted,  who  take  nothing  from  their  father,  but  directly 
from  the  devisor. 

That  the  limitation,  under  the  construction  we  have  adopted,  is  a 
contingent  remainder  is  apparent  from  the  decisions  of  this  court, 
and  these  decisions,  it  is  believed,  are  in  harmony  with  the  princi- 
ples of  the  common  law  as  enunciated  by  the  most  approved  authori- 
ties in  other  jurisdictions.  In  Starnes  v.  Hill,  112  N.  C.  1,  and  Clark 
v.  Cox,  at  this  term,  we  quoted  with  approval  the  language  of  Mr. 
Gray   in   his   excellent   work  on  Perpetuities,  "  that  the  true  test  in 


I.  2.]  KINDS    OF    FUTURE    ESTATES  :    REMAINDERS.  879 

limitations  of  this  character  is  that  if  the  conditional  element  is  incor- 
porated into  the  description  of  the  gift  to  the  remainderman  (as  it 
is  in  the  case  under  consideration),  then  the  remainder  is  contingent, 
but  if  after  the  words  giving  a  vested  interest  a  clause  is  added 
divesting  it,  the  remainder  is  vested.  Thus,  on  a  devise  to  A.  for 
life,  remainder  to  his  children,  but  if  any  child  die  in  the  lifetime  of 
A.  his  share  to  go  to  those  who  survive,  the  share  of  each  child  is 
said  to  be  vested,  subject  to  be  divested  by  its  death.  But  on  a 
devise  (as  in  the  present  case)  to  A.  for  life,  remainder  to  such  of 
his  children  as  survive  him,  the  remainder  is  contingent." 

In  Watson  v.  Watson,  3  Jones,  Eq.  400,  the  devise  was  to  A.  for 
life,  and  at  his  death  to  such  of  his  children  as  might  then  be  living, 
and  the  issue  of  such  as  might  have  died  leaving  issue.  It  was  held 
that  A.  was  tenant  for  life  "  with  a  contingent  remainder  in  fee  to 
his  children  who  may  be  living  at  his  death,  and  to  the  issue  of  such 
children  as  may  have  died  in  his  lifetime,  leaving  children.  See, 
also,   Watson  v.  Smith,  no  N.  C.  6. 

In  Williams  v.  Hassell,  74  N.  C.  434,  the  court  said,  "  inasmuch 
as  the  lands  are  devised  to  the  first  takers  for  life  only,  with  remain- 
ders to  such  of  their  children  as  should  be  living  at  their  death,  it 
cannot  be  ascertained  now  who  are  to  take  the  remainder." 

In  Young  v.  Young,  97  N.  C.  132,  the  court  said:  "  The  contin- 
gent remainders  limited  on  the  termination  of  the  life  estate  are  to 
such  of  her  children  as  are  then  living  and  to  the  then  living  issue  of 
such  as  have  died  leaving  issue,  so  it  is  impossible  to  tell  who  will 
be  entitled  when  the  life  tenant  dies. 

In  Miller,  ex  parte,  90  N.  C.  625,  there  was  a  devise  of  land  to  A. 
for  life,  with  remainder  to  such  children  as  she  may  leave  her  sur- 
viving, and  it  was  held  that  the  children  took  contingent  remainders. 

Without  resorting  to  the  text-books,  these  authorities  abundantly 
show  that  the  element  of  survivorship  in  our  case  fully  characterizes 
the  limitation  as  a  contingent  remainder. 

In  view  of  the  construction  we  have  placed  upon  the  language  of 
the  will,  and  of  the  decisions  of  our  own  court,  we  do  not  deem  it 
necessary  to  review  the  many  English  and  other  cases  cited  by 
counsel.  None  of  them  are  directly  in  point,  and  even  if  they  were, 
we  would  not  be  inclined  to  depart  from  our  own  decisions,  which,  as 
we  have  already  remarked,  are,  in  our  opinion,  well  supported  by  prin- 
ciple as  well  as  authority.  If  the  will  should  read  as  we  have  con- 
strued it  (and  of  this  we  think  there  can  be  but  little  doubt),  it  is 
clear  that  these  remainders  are  contingent.  The  case  most  strongly 
pressed  upon  us  in  the  argument  is  Ex  parte  Dodd,  Phil.  Eq.  97. 
The    decision    turned    upon    the    construction    placed    upon    the 


880    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

language  of  the  will,  under  which  it  seems  that  the  limitation  was 
general,  that  is,  to  all  of  the  children  of  the  life  tenant,  or  the  issue  of 
such  children.  The  element  of  survivorship  as  a  condition  to  the 
vesting  of  the  remainder  was  considered  as  absent,  and  it  was  held 
that  the  remainder  was  vested  as  to  the  children  living,  subject,  of 
course,  to  open  and  let  in  after-born  children,  or  the  issue  of  such 
as  should  die  before  the  life  tenant.  That  this  is  the  ratio  decidendi 
of  the  case,  is  apparent  from  the  opinion  of  the  court  in  Irvi.n  v. 
Clark,  98  N.  C.  437.  The  limitation  there  was  "  to  Margaret  Irvin 
and  her  husband  during  their  natural  lives,  and  to  descend  to  the 
children  of  the  said  Margaret  equally."  This  was  treated  as  a 
vested  remainder,  but  the  court  was  careful  to  say  that,  "  if  the 
devise  had  been  to  those  children  living  at  the  death  of  the  mother, 
there  would  have  been  a  contingent  and  not  a  vested  interest  in 
either,  for  until  that  event  occurred  it  could  not  be  known  who 
would  take,  and  in  such  case  the  contingent  interest  could  not  be 
sold  by  a  court  of  equity.  But  when  the  gift  is  general,  not  being 
confined  to  survivors,  when  to  take  effect,  it  is  otherwise,  and,  by 
representation,  those  who  may  afterwards  come  into  being  are 
concluded  by  the  action  of  the  court  upon  those  whose  interests 
are  vested,  but  whose  possession  is  in  the  future.  The  dis- 
tinction is  pointed  out  by  Battle,  J.,  in  delivering  the  opinion  in  Ex 
parte  Dodd." 

As  we  have  seen,  the  remainders  to  the  sons  being  limited  only 
to  such  of  them  as  survived  their  mother,  and  Simpson  Jarrett  White- 
sides,  one  of  the  said  sons,  having  died  in  1874,  before  the  death  of 
the  life  tenant  in  1887,  it  must  follow  that  his  children,  the  plain- 
tiffs, acquired  the  interest  in  controversy  as  purchasers,  and  the  only 
question  which  remains  to  be  determined  is  whether  they  are  pre- 
cluded from  asserting  their  title  by  the  conveyance  of  their  father, 
and  the  proceedings  for  partition  under  which  the  land  was  sold  and 
purchased  by  one  Davis,  under  whom  the  defendant  claims. 

2.  If  the  view  we  have  taken  of  this  limitation  is  correct,  it  is 
hardly  necessary  to  cite  authority  in  support  of  his  Honor's  ruling 
that  the  plaintiffs  are  not  rebutted  by  the  conveyance  and  warranty 
of  their  father  in  1867.  The  case  of  Flynn  v.  Williams,  1  Ired,  509,  is 
not  in  point.  It  was  there  held  that  where  one  having  an  estate  of 
inheritance  in  possession  sells  the  same  with  general  warranty,  his 
heirs  are  bound,  whether  the  warranty  be  lineal  or  collateral,  and 
whether  they  have  assets  or  not.  Tn  the  present  case,  no  estate 
whatever  vested  in  the  ancestor,  and  his  children  who  take  as  pur- 
chasers  under  the  will,  are,  therefore,  not  bound  by  his  warranty. 
1,     11  had  a  life  estate  vested  in  him,  his  warranty  would  likewise 


I.   2.]  KINDS   OF   FUTURE    ESTATES:    REMAINDERS.  88 1 

have  been  ineffectual  by  way  of  rebutter.     The  Code,  §  1334;  Starnes 
v.  Hill,  supra. 

3.  Were  the  plaintiffs  bound  by  the  sale  for  partition?  It  appears 
that  in  1870  John  Kimberly  (who  had  purchased  the  interest  of  Simp- 
son Jarrett  Whitesides),  together  with  the  life  tenant  (Catherine) 
and  the  other  contingent  remaindermen,  united  in  a  petition  for  the 
sale  of  the  land  for  partition.  Under  a  decree  rendered  in  this 
proceeding  the  land  was  sold  and  T.  K.  Davis  became  the  purchaser. 
The  defendant  claims  under  the  said  Davis,  and  denies  the  claim  of 
the  plaintiffs  that  they  are  tenants  in  common  with  him  to  the 
extent  of  one-sixth  interest  in  the  said  land.  The  life  tenant 
(Catharine)  having  died  in  1887,  the  plaintiffs'  contention  must  be 
sustained,  unless  they  are  bound  by  the  decree  of  sale.  Neither  these 
plaintiffs  (if,  indeed,  they  were  in  existence  at  that  time)  nor  their 
father  were  parties  to  the  proceeding,  but  it  is  insisted  that  they 
were  represented  by  others  of  the  same  class,  or  at  least  by  the  life 
tenant.  It  is  plain  that  the  other  parties  could  not  represent 
these  plaintiffs  as  a  part  of  the  same  class,  and  upon  this  point  it 
is  only  necessary  to  refer  to  Irvin  v.  Clark,  supra,  and  the  authori- 
ties therein  cited.  Equally  untenable  is  the  position  that  these  con- 
tingent remaindermen  were  represented  by  the  life  tenant.  This 
would  be  a  very  radical  departure  from  well  settled  principles,  and 
has  received  no  countenance  from  this  court.  In  Overman  v.  Tate, 
114  N.  C.  571,  we  quoted,  with  approval,  the  language  of  Lord  Hard- 
wicke  in  Hopkins  v.  Hopkins,  1  Atk.  590,  that  "  if  there  were  so  many 
contingent  limitations  of  a  trust,  it  is  an  established  rule  that  it  is 
sufficient  to  bring  the  trustees  before  the  court,  together  with  him  in 
whom  the  first  remainder  of  inheritance  is  vested,  and  all  that  may 
come  after  will  be  bound  by  the  decree,  though  not  in  esse,  unless 
there  be  fraud  and  collusion  between  the  trustees  and  the  first  per- 
son in  whom  the  remainder  of  inheritance  is  vested."  In  referring 
to  the  application  of  this  principle  in  one  or  two  jurisdictions,  where 
the  first  remainder  was  only  for  life,  we  stated  that  we  were  not  pre- 
pared to  adopt  such  a  view,  and  a  fortiori  would  it  be  rejected  in  a 
case  like  the  present,  where  the  limitations  are  not  in  trust  but 
purely  legal?  Under  the  peculiar  circumstances  of  the  case  referred 
to,  we  applied  the  principle  declared  by  Lord  Hardwicke,  the  fact 
that  the  limitations  were  in  trust  not  having  been  adverted  to  in  a 
previous  ruling.  The  decision  was  not  based  upon  the  idea  that  the 
child  of  Annie  was  of  the  same  class  as  the  issue  of  Caswell,  but  this 
was  mentioned  as  a  circumstance  tending  to  show  that  but  little 
prejudice  would  probably  result  by  the  application  of  the  principle 
above  stated,  under  the  particular  limitations  then  before  us. 


882    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

4.  Neither  is  there  any  force  in  the  contention  that  our  case  falls 
within  the  principle  of  England  \ .  Garner,  90  N.  C.  197,  and  other 
decisions  in  which  the  court  has  gone  very  far  in  sustaining  judicial 
sales.  It  is  not  pretended  that  these  plaintiffs,  even  if  in  esse,  were 
represented  by  guardian  or  any  one  claiming  to  be  their  attorney. 
Indeed,  they  are  not  mentioned  as  parties  in  any  stage  of  the  pro- 
ceeding, nor  is  there  anything  in  the  decree  which  purports  to  bind 
their  contingent  interests. 

5.  As  to  the  statute  of  limitations,  it  is  only  necessary  to  say  that 
it  did  not  begin  to  run  against  these  plaintiffs  until  the  death  of  the 
life  tenant  in  1887.  Their  rights  accrued  only  upon  that  event,  and 
it  is  therefore  clear  that  they  are  not  barred. 

After  a  careful  consideration  of  the  elaborate  brief  of  counsel,  we 
have  been  unable  to  discover  any  error  in  the  rulings  of  his  Honor. 

Affirmed. 


MORSE  v.  PROPER. 
82  Georgia,  13. —  1888. 

One  L.  S.  Morse  conveyed  certain  premises  to  his  stepmother, 
Anna  Morse,  as  her  separate  estate  for  life,  and  after  the  death  of 
said  Anna  Morse  gives  "  said  property  *  *  *  to  such  of  the 
children  of  said  Anna  Morse  by  her  present  husband  as  may  be  living 
at  her  death,  and  the  representative  of  such  as  may  be  dead,  in  fee, 
the  representative  to  take  the  share  these  deceased  persons  would 
have  been  entitled  to,  had  he  or  she  been  alive;  but  if  the  said  Anna 
Morse  should  die  without  child  or  children,  or  the  representative 
of  either,  then  the  whole  of  the  above-named  property,  with  the 
increase,  I  give  unto  the  said  Oliver  Morse  [her  husband]  in  fee 
simple."  Daniel  Morse,  the  only  child  of  Oliver  and  Anna,  was 
living  when  the  deed  was  made.  Daniel  died  in  1868,  and  thereafter 
Oliver  made  a  will  giving  all  his  property,  present  and  expectant,  to 
Anna.  Oliver  soon  thereafter  died,  and  Anna  made  a  will  giving  all 
her  property  to  her  sister,  Mrs.  Proper.  Anna  having  died,  L.  S. 
Morse  brings  this  action  to  prevent  Mrs.  Proper  from  interfering 
with  the  property  in  question. 

Decision  below  for  Mrs.  Proper.      Morse  appeals. 

Simmons,  J.  —  *  *  *  The  question  for  decision  in  this  case  is, 
whether  Oliver  Morse  had  such  an  interest  in  this  property  at  the  time 
of  his  death,  in  1868,  as  he  could  transmit  by  will  to  his  wife.  If  he 
did  have  such  a  devisable  interest,  having  devised  it  to  his  wife,  and 
his  wife  having  devised  it  to  her  sister,  the  defendant  in  error  here, 
the  chancellor  was  right  in  refusing  the  injunction.     It  will  be  remem- 


I.  2.]  KINDS   OF   FUTURE    ESTATES:    REMAINDERS.  883 

bered  that  the  deed  from  L.  S.  Morse  to  Anna  Morse  gave  her  this 
property  for  and  during  her  natural  life,  and  after  her  death  it  was  to 
go  to  her  children  or  the  representatives  of  the  children;  and  in  case 
she  died  leaving  no  children  or  representatives  of  children,  the  prop- 
erty was  to  go  to  Oliver  Morse,  in  fee.  In  our  opinion,  Oliver 
Morse,  under  this  deed,  took  a  remainder  interest  in  this  property. 
Was  it  vested  or  a  contingent  remainder?  The  plaintiff  in  error  con- 
tended that  it  was  a  contingent  remainder,  and  that  the  contingency 
was  as  to  the  person,  and  therefore  Oliver  Morse,  under  section  2266 
of  the  code,  had  no  such  interest  in  the  property  as  he  could  devise 
to  his  wife.  Counsel  for  the  defendant  in  error  contended  (1)  that 
Oliver  took  a  vested  remainder,  under  the  deed  made  in  1855,  (2)  but 
that  if  it  was  a  contingent  remainder,  the  contingency  was  as  to  the 
happening  of  an  event,  and  not  as  to  the  person,  and  therefore  he 
had  a  right  to  devise  it.  This  case  was  ably  argued  by  counsel  on 
both  sides,  and  we  have  given  it  a  great  deal  of  consideration,  and 
we  think  that  Oliver  Morse  had  such  an  interest  in  this  property  as 
he  could  devise  to  his  wife;  and  therefore  the  chancellor  was  right 
in  refusing  the  injunction.  We  think  that  under  the  deed  he  took 
a  contingent  remainder,  and  the  contingency  was  as  to  the  event  and 
not  as  to  the  person  The  language  of  the  code  on  this  subject  is 
as  follows,  §  2265:  "  Remainders  are  either  vested  or  contingent. 
A  vested  remainder  is  one  limited  to  a  certain  person  at  a  certain 
time,  or  upon  the  happening  of  a  necessary  event.  A  contingent 
remainder  is  one  limited  to  an  uncertain  person,  or  upon  an  event 
which  may  or  may  not  happen."  §  2266:  "  If  the  remainderman 
dies  before  the  time  arrives  for  possessing  his  estate  in  remainder, 
his  heirs  are  entitled  to  a  vested  remainder  interest,  and  to  a  con- 
tingent remainder  interest  when  the  contingency  is  not  as  to  the 
person  but  as  to  the  event."  The  deed  in  this  case  declares  that 
"  if  the  said  Anna  Morse  should  die  without  child  or  children  or  the 
representative  of  either,  then  the  whole  of  the  above  named  prop- 
erty, with  the  increase,  I  give  unto  the  said  Oliver  Morse  in  fee 
simple."  We  think  the  contingency  depended  on  the  event  of  Anna 
Morse  dying  without  children  or  the  representative  of  children. 
The  deed  means,  in  our  opinion,  that  in  the  event,  or  in  that  case, 
or  when  that  particular  thing  should  happen,  Oliver  Morse  should 
take  the  property  in  fee.  There  was  no  uncertainty  as  to  who 
should  take  if  there  were  no  children  or  representative  of  children, 
living  at  the  time  of  her  death.  The  person  to  take  in  that  event 
was  certain,  and  was  fixed  by  deed.  In  case  there  were  no  children 
or  representatives  of  children  living  at  the  time  of  Anna's  death,  the 
deed  points  unerringly  to  the  person  who  would  take,  and  declares 


884    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  GIL  VI. 

that  he  should  take  in  fee  simple,  which,  under  our  law,  means  not 
only  himself  but  his  heirs  and  assigns.  If  the  deed  had  said  that  in 
case  Mrs.  Morse  died  without  children  or  representative  of  children, 
then  to  the  heirs  or  right  heirs  of  Oliver  Morse,  the  person  to  take 
in  that  event  would  have  been  uncertain  ;  or  if  it  had  said,  in  case  of 
Mrs.  Morse  dying  without  children  or  representative  of  children,  to 
the  heirs  of  John  Smith,  the  persons  to  take  would  have  been  uncer- 
tain; but  as  we  have  said  before,  the  deed  does  not  leave  it  uncertain 
who  is  to  take  in  the  event  she  died  without  children  or  representa- 
tive of  children.  It  seems  that  in  that  case,  Oliver  Morse  is  to  take 
in  fee  simple.  Oliver  Morse  having  a  contingent  remainder  interest 
in  this  property,  did  he  have  a  right  to  dispose  of  it  by  will  to  his  wife? 
We  think  he  did.  The  old  doctrine  was,  that  contingent  remainders 
were  not  devisable  by  the  person  entitled  thereto;  but  that  doctrine 
was  abandoned  many  years  ago,  and  it  is  now  held  almost  universally 
that  a  contingent  remainder  is  devisable  where  the  contingency  is 
not  as  to  the  person  but  as  to  the  event.  Indeed,  that  is  the  princi- 
ple announced  in  our  code,  §2266.  That  section  declares  that  if  the 
remainderman  dies  before  the  time  arrives  for  possessing  his  estate, 
his  heirs  are  entitled  to  a  contingent  interest,  when  the  contingency 
is  not  as  to  the  person  but  as  to  the  event.  If  the  contingency  be 
as  to  the  person,  and  that  person  be  not  in  esse  at  the  time  when  the 
contingency  happens,  his  heirs  are  not  entitled.  It  is  contended  by 
counsel  for  the  plaintiff  in  error  that  the  latter  part  of  this  section 
controls  the  case;  but  we  think  we  have  shown  that  the  contingency 
was  not  as  to  the  person,  but  as  to  the  event;  and  therefore  the 
latter  part  of  the  section  does  not  apply  to  this  case. 

Counsel  for  the  defendant  in  error  cited  the  case  of  Loring  v. 
Arnold,  8  Atlantic  Rep.  335,  Supreme  Court  of  Rhode  Island,  the 
facts  of  which  case,  we  think,  are  exactly  the  same  as  in  the  case 
now  under  consideration.  In  that  case,  it  appears  that  Thomas 
Whipple  died  in  1843,  leaving  a  will  by  which  he  devised  certain  real 
estate  to  his  son  James,  "  for  and  during  his  natural  life,  and  at  his 
decease,  if  he  should  leave  any  lawful  child  or  children,  then  to 
them,  their  heirs  and  assigns  forever;  but  if  he  should  die  without 
leaving  any  lawful  child  or  children,  then  my  will  is  that  the  same 
shall  descend  and  be  divided  equally  among  his  brother  T.,  his 
sisters  G.,  M.,  S.,  A.,  and  J.  A.  B.,  to  them,  their  heirs  and  assigns 
forever."  1.  A.  B.  died  in  Illinois,  in  18S1,  leaving  by  will  all  her 
estate  in  Rhode  Island  to  C.  E.  B.  James  died  in  1885,  leaving  no 
mi-  children.  It  was  held  that  J.  A.  B.  had  a  contingent 
tinder;  and  thai  although  this  contingency  was  not  determined 
Until    after    the   death    of    J.   A.   B.,  yet    the    person    who  was  to  take 


I.  2.]  KINDS   OF   FUTURE   ESTATES:    REMAINDERS.  885 

being  certain,  the  interest  was  descendible  and  devisable.  So  also 
in  2  Leading  Cases  in  the  American  Law  of  Real  Property,  374; 
Buzby's  Appeal,  61  Pa.  11  r;  Chess's  Appeal,  87  Pa.  362;  Fearne  on 
Rem.  7th  ed.  364-5;  4  Kent,  264;   2  Washb.  Real  Prop.  522. 

The  case  of  Jackson  v.  Waldron,  13  Wendell,  17S,  relied  on  so 
strongly  by  the  plaintiff  in  error,  was  overruled  in  the  case  of  Miller 
et  ux.  v.  Emmons  et  al.,  19  N.  Y.  384.  The  decision  in  the  case  of 
Morelwursi'  v.  Wainhouse,  decided  in  1767  and  reported  in  1  Black- 
stone's  Reports,  also  relied  on  by  the  plaintiff  in  error,  was  put  upon 
the  peculiar  circumstances  of  that  case,  and  the  facts  of  that  case 
are  different  from  the  facts  in  this. 

Judgment  affirmed. 


c.    Certain  special  cases. ,' 

(1.)  Remainder  to  a  Class. 

MINNIG  v.  BATDORFF. 

5  Pennsylvania  State,  503.  —  1847. 

In  error  from  the  Common  Pleas  of  Lebanon.  Case  stated.  In 
1793,  Noll  made  his  will,  wherein  he  devised  to  his  wife  for  life, 
remainder  to  his  daughter,  Elizabeth,  for  life.  "  Item,  that  when 
my  said  daughter  depart  this  her  natural  life,  the  children  which  are 
come  or  born  of  her  body  shall  hold  and  possess  my  said  land  or 
plantation.  Item,  I  do  give  and  bequeath  my  land  and  plantation, 
(at  the  time  of  my  said  daughter  her  decease,)  to  the  children  which 
are  come  and  born  of  and  from  her  body,  together  with  the  deeds, 
draughts,  and  all  other  writings  thereunto  belonging  to  them  (the 
said  plantation)  and  their  heirs  and  assigns  forever." 

Testator  died  in  1794,  when  his  daughter  Elizabeth  had  two  chil- 
dren, one  of  whom  was  Jacob  Ditzler.  After  the  death  of  testator 
she  had  four  other  children.  In  1827,  Jacob  conveyed  all  his  estate 
to  Batdorff,  the  ancestor  of  the  plaintiffs  below,  and  died  in  1836, 
his  mother  surviving;  she  died  in  1841,  leaving  five  children. 

The  court  gave  judgment  for  the  plaintiffs  for  one-sixth  of  the 
land,  and  the  defendants  sued  out  this  writ  of  error. 

Bell,  J.  — The  question  presented  by  this. record  is,  whether  the 
children  of  Elizabeth  Ditzler  took  a  vested  remainder  under  the  will 

'  It  is  always  a  question  of  construction  whether  a  condition  is  precedent  or 
subsequent,  and  so  whether  the  remainder  is  contingent,  or  is  vested  subject  to 
being  defeated.  The  law  favors  vesting  even  though  defeasibly.  The  cases 
under  this  head  illustrate  this  tendency.  —  Ed. 


886    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

of  their  grandfather,  the  testator,  or  whether,  as  the  defendant  avers, 
it  was  contingent  as  to  each  of  them,  dependent  upon  their  respect- 
ively surviving  their  mother.  If  the  limitation  over  vested  in  the 
children  on  the  death  of  the  testator,  it  is  conceded  the  deed  from 
Jacob  Ditzler  to  John  Batdorff  passed  a  fee  in  one-sixth  part  of  the 
land  devised,  and,  consequently,  the  judgment  rendered  by  the  court 
below  is  correct. 

Looking  to  the  almost  unbroken  current  of  decisions,  commencing 
with  Borastoris  Case,  3  Rep.  19,  which  settles  the  rule  of  construc- 
tion that  must  govern  here,  it  was  hardly  to  have  been  expected  we 
would  be  called  on,  at  this  late  day,  to  reaffirm  principles  that  have 
long  ago  passed  into  rules  of  property.  One  of  these,  clearly 
deducible  from  all  the  cases,  is  stated  by  Mr.  Powell  in  his  admira- 
ble Treatise  on  Devises,  vol.  2,  p.  215,  to  be,  that  when  land  is  given 
to  one  person  for  life,  or  for  any  other  estate  upon  which  a  remainder 
may  be  dependent,  and  after  the  determination  of  that  estate  it  is 
devised  over,  whether  to  persons  nominatim,  or  to  a  class  of  per- 
sons, it  will  vest  in  the  objects  to  whom  the  description  applies  at  the 
death  of  the  testator.  But  in  devises  to  children,  where  the  ques- 
tion has  been  most  frequently  agitated — at  what  period  are  the 
objects  who  are  to  take  to  be  ascertained? — the  rule  is  different. 
When  there  is  an  immediate  gift  to  children,  those  only  living  at 
the  testator's  death  will  take;  but  it  is  now  settled,  that  where  a 
particular  estate  or  interest  is  carved  out,  with  a  gift  over  to  the 
children  of  the  person  taking  that  interest,  or  of  any  other  person, 
the  limitation  will  embrace  not  only  the  objects  living  at  the  death 
of  the  testator,  but  all  who  shall  subsequently  come  into  existence 
before  the  period  of  distribution.  Such  a  remainder  vests  in  the 
objects  to  whom  the  description  applies  at  the  death  of  the  testator, 
subject  to  open  and  let  in  others  answering  the  description  as  they 
are  born  successively.1  As  to  the  latter,  the  remainder  is  contingent 
until  they  are  in  esse,  but  then  it  immediately  vests,  and  from  thence- 
forth is  attended  by  all  the  properties  incidental  to  vested  estates. 
Fearne  on  Cont.  Rem.  242;  2  Powell  on  Dev.  303,  and  cases  there 
cited.  Our  own  cases  are  in  accordance  with  this  doctrine,  as  may 
be  seen  by  consulting  Wager  v.  Wager,  1  Serg.  &  Rawle,  374,  which 
I  select  as  most  decisive,  from  the  fact  that  it  was  an  assurance  by 
deed,  but  decided  on  the  intention  of  the  grantor.  There  the  con- 
veyance was  to  P.  and  H.,  his  wife,  for  their  joint  lives,  and  the  life 
of  the  survivor,  with  remainder  to  the  children  of  H.  lawfully 
begotten,  in  fee,  immediately  after  the  decease  of  the  survivor.      It 


'Thai    is   the    remainder   is   subject   to  a  condition  subsequent — the  birth  of 
other  children       upon  the  happening  of  which  it  will  be  divested  is  part.  —  En. 


I.  2.]  KINDS   OF   FUTURE   ESTATES:    REMAINDERS.  887 

was  held,  the  children  in  being  at  the  death  of  the  testator  took  vested 
remainders  liable  to  open  for  the  admission  of  those  subsequently 
born. 

But  it  is  supposed  the  devise,  immediately  under  consideration, 
presents  peculiar  features  that  withdraw  it  from  the  governing  influ- 
ence of  these  rules,  and  as  showing  this,  the  counsel  for  the  plaintiff 
in  error  called  our  attention  particularly  to  the  words  "  when  "  and 
"  which  are  come  to  be  born  of  the  body,"  in  the  clause  "  that  when 
my  said  daughter  departs  this  her  natural  life,  the  children  which  are 
come  or  born  of  her  body  shall  hold  and  possess  my  said  land  and 
plantation."  We  are,  however,  unable  to  perceive  anything  in  the 
latter  words  indicating  an  intent  that  only  those  of  Elizabeth's 
children  who  should  be  living  at  her  death,  should  take  in  exclu- 
sion of  the  heirs  of  such  of  them  as  might  happen  to  die  during  her 
life.  The  sentence  is  certainly  somewhat  awkwardly  expressed,  but 
its  terms  are  amply  broad  enough  to  cover  all  the  children  born  of 
Elizabeth;  and  to  hold  that  it  confined  the  devise  to  children  living 
at  the  death  of  the  mother,  would  be  straining  a  point  against  the 
often  expressed  unwillingness  of  the  courts  to  construe  a  remainder 
contingent,  when  it  may,  without  any  manifest  violence  done  to  the 
language  of  the  testator,  be  supported  as  vested.  Doe  v.  Perryn,  3 
Term  Rep.  484.  In  Doe  ex  dem.  Barnes  v.  Provoost,  4  Johns.  R.  61, 
a  case  always  received  with  approbation,  the  words  used  were  much 
stronger  to  show  an  intent  to  postpone  the  vesting  of  the  remainder 
until  the  death  of  the  tenant  for  life,  than  those  of  the  present  will. 
The  devise  was,  "  to  my  daughter  C.  P.,  etc.,  during  the  term  of 
her  natural  life,  and  immediately  after  her  death  I  give  the  same  unto 
and  among  all  and  every  such  child  and  children  as  the  said  C.  shall 
have  lawfully  begotten  at  the  time  of  her  death  in  fee  simple."  It 
was  strongly  urged  that  the  words  "  shall  have  "  were  to  be  used  in 
immediate  connection  with  the  sentence  "at  the  time  of  her  death," 
the  words  "  lawfully  begotten  "  being  merely  used  to  confine  the 
gift  to  legitimate  children,  whereby  the  limitation  over  would  be 
restricted  to  such  of  the  children  as  survived  the  mother,  and  there-, 
fore  contingent.  But  it  was  held  that  to  effectuate  the  intent, 
"  begotten  "  must  be  taken  as  used  synonymously  with  "  born,"  and 
the  subsequent  words  referring  to  the  death  of  the  mother,  were 
employed  simply  as  expressive  of  the  time  when  the  devise  over  was 
to  vest  in  possession.  The  same  may  be  said  with  much  stronger 
show  of  reason  in  respect  to  the  apparent  intent  of  the  devisor  in  the 
present  case,  for  if  there  be  nothing  in  the  phrase  "  are  come  or 
born  "  to  favor  the  construction  of  the  plaintiff  in  error,  it  is  certain 
that  the  word  "  when,"  used  in  this  collocation,  will  not  aid  him. 


FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

Though  this  term  may  in  certain  cases  import  contingency,  as,  for 
instance,  when  a  legacy  is  given  to  A.  when  he  attains  the  age  of 
twenty-one  years,  without  more,  King  v.  Crazvford,  17  Serg.  & 
Rawle,  118,  yet  it  is  settled  by  repeated  decisions,  that  when  it  is 
employed  as  it  is  here,  it  is  considered  as  merely  marking  the  period 
at  which  the  estate  is  to  take  effect  in  enjoyment,  and  not  as  post- 
poning the  period  of  vesting.  It  is  scarcely  worth  while  to  run 
through  all  the  cases  on  this  point.  It  will  be  sufficient  to  refer  to 
Boraston  s  Case,  supra,  as  a  leading  authority.  The  devise  there  was, 
first  for  an  estate  for  years,  and  after  its  determination,  to  the  exe- 
cutors, for  the  purposes  of  the  will,  till  such  time  as  H.  should 
accomplish  his  age  of  twenty-one  years,  and  when  H.  should  attain 
twenty-one,  then  to  him  in  fee.  It  was  contended  the  remainder  did 
not  vest  in  H.  until  he  attained  full  age,  but  it  was  determined  that 
the  adverbs  of  time,  when,  etc.,  did  not  make  anything  necessary  to 
precede  the  vesting  of  the  remainder,  but  merely  expressed  the  time 
when  it  should  fall  into  possession.  The  same  principle  is  recog- 
nized in  Hanson  v.  Graham,  6  Ves.  239,  cited  for  the  plaintiff  in 
error  as  an  opposing  authority,  as  established  by  all  the  cases,  and 
particularly  in  Goodtitle  v.  Whitby,  1  Burr.  228,  ruled  by  Lord  Mans- 
field. So  plainly  applicable  is  this  class  of  cases  to  the  one  in  hand, 
that  the  attempt  to  distinguish  it  runs  into  a  refinement  of  ingenuity 
too  subtle  to  be  practicable,  and  it  is  therefore  not  surprising  that 
the  counsel  who  essayed  it  found  difficulty  in  presenting  his  views 
clearly  to  the  court.  To  all  that  was  urged  by  him,  it  would,  with- 
out more,  be  a  sufficient  answer,  that  any  other  construction  than 
that  we  have  put  on  this  will,  would  exclude  the  offspring  of  those 
of  the  children  who  might  happen  to  die,  pending  the  particular 
estates  —  an  intent,  in  a  case  like  the  present,  not  to  be  imputed  to 
a  testator,  unless  it  be  undoubtedly  manifested. 

It  follows,  from  the  view  we  have  taken,  that  Jacob  Ditzler,  eldest 
son  of  Elizabeth,  and  grantor  to  the  plaintiff's  ancestor,  took  a  vested 
remainder  in  fee,  immediately  on  the  death  of  the  testator,  which 
opening  to  let  in  his  brothers  and  sisters,  subsequently  born,  left  in 
him  ultimately  one-sixth  part  of  the  land  in  fee,  expectant  on  the 
death  of  his  mother,  which  passed  under  the  conveyance  made  by 
him.  The  judgment  of  the  court  below  in  favor  of  the  plaintiff, 
being  for  this  proportion,  is  consequently  right. 

Judgment  affirmed.1 


See  also  Adams  v.  Ross,  supra,  p.  4S3.  —  Ed. 


La.]  KINDS   OF   FUTURE   ESTATES:    REMAINDERS.  889 

(2.)  Remainders  After  Estates-tail.1 
HAVENS  v.   SEA  SHORE  LAND  CO. 

47  New  Jersey   Equity,  365.  —  1890. 
[Reported  herein  at  p.  926.] 


(3.)  Remainders  in  Default  of  Appointment  Under  a  Power.2 
The    LORD  CHANCELLOR    in  CUNNINGHAM  v.  MOODY. 

1   Vesey,  Sr.  (Eng.),  174.  —  1748. 

Next  as  to  the  inheritance;  and  if  the  plaintiff  must  claim  this 
reversion  in  fee  from  her  sister,  she  cannot  have  it;  because  being 
but  of  half-blood  to  her,  she  cannot  be  heir.  But  I  am  of  opinion, 
that  she  may  claim  it  from  her  father,  who  took  also  an  estate  for 
life  by  the  same  settlement;  so  that  according  to  the  ordinary  rules 
it  vested  in  him;  and  whoever  takes  afterward  must  take  through 
him.  It  is  certain,  that  where  no  person  is  seen  or  known,  in  whom 
the  inheritance  can  vest,  it  may  be  in  abeyance;  as  in  a  limitation 
to  several  persons,  and  the  survivor,  and  the  heirs  of  such  survivor; 
because  it  is  uncertain  who  will  be  survivor;  but  the  freehold3  can- 
not, because  there  must  be  a  tenant  to  the  prcecipe  always.  The 
fee's  being  in  abeyance  has  in  some  cases  occasioned  an  act  of  parlia- 
ment to  remedy  it;  but  here  it  was  not  so;  nor  does  the  power  of 
appointment  make  any  alteration  therein,  for  the  only  effect  thereof 
is,  that  the  fee  which  was  vested,  was  thereby  subject  to  be  divested, 
if  the  whole  was  appointed;  or  if  part  so  much  as  was  not  drawn 
out  of  the  inheritance,  still  remained  in  the  father  as  part  of  the  old 
fee.  And  there  is  no  occasion  to  put  the  inheritance  in  abeyance, 
which  the  court  never  does  but  from  necessity,  and  will  so  mould 
it  by  opening  the  estate  as  in  Lewis  Boivle  s  Case,  and  several  others, 
as  best  to  answer  the  purposes  of  the  limitations.  But  if  the  appoint- 
ment was  not  made,  it  remained  undisturbed. 

1  These  were  treated  as  vested,  but  defeasible  as  the  tenant-in-tail  might  bar 
the  remainder  by  proper  proceedings.  The  chance  that  he  might  do  this  was 
regarded  as  a  condition  subsequent.  See  Gray's  Rule  Against  Perpetuities, 
§  in.  See  for  the  treatment  of  such  remainders  under  the  N.  Y.  Statute,  £  22, 
R.  P.  L.  —  Ed. 

2  See  §  31,  N.  Y.  R.  P.  L.,  and  §  112,  Gray's  Rule  Against  Perpetuities.  —  Ed. 
3.  The  term  "  freehold  "  is  used  here,  as  often,  to  denote  the  present  estate  in 

possession  whether  for  life  or  in  fee.  —  Ed. 


89O    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

(4.)  Where  the  Event  Which  Forms  the  Natural  Termination  of  the  Pre- 
cedent Estate  Would  Also  (Should  it  Happen  Now)  Give  a  Person  in 
Being  the  Qualification  Necessary  to  Enable  Him  to  Take,  is  the 
Remainder  Vested  or  Contingent  ? 

In  re  JACKSON'S  DEED. 

4  Keyes  (N.  Y.)  569;  41  New  York,  66;  50  New  York,  161. ' 

In  1832  Samuel  Jackson  conveyed  certain  lands  to  his  son,  John 
Jackson,  "  for  and  during  his  natural  life,  and  after  his  decease  to 
his  heirs  and  their  assigns  forever.'  John  then  had  thirteen  chil- 
dren. One  of  them  died  prior  to  1844  and  in  that  year  John  executed 
a  deed  conveying  to  his  twelve  children  all  his  right,  title  and  interest 
in  the  said  property.  One  of  those  children  died  intestate,  unmar- 
ried, without  issue  prior  to  1848,  and  in  that  year  John  Jackson  and 
his  wife  executed  another  deed,  whereby  they  ''  granted,  bargained, 
sold,  released,  conveyed  and  confirmed  "  the  same  land,  with  all 
their  right,  title,  interest,  etc.,  to  his  then  eleven  surviving  children. 
In  1848  these  eleven  children  undertook  to  partition  this  land  among 
themselves  by  sets  of  partition  deeds  some  of  which  were  made  in 
that  year  and  some  in  1849.  In  1861  John  Jackson  died,  one  of  the 
eleven  children  having  died  before  him,  leaving  an  infant  child. 
After  the  death  of  John  the  children,  ignoring  their  partition  deeds, 
effected  a  new  partition  by  action. 

Sheridan  v.  House,  4  Abb.  Ct.  App.  Dec.  218;  4  Keyes,  569. 
(1868).  Richard  Jackson,  a  son  of  John  had  received  a  certain 
parcel  of  the  land  by  one  of  the  partition  deeds  in  1849.  In  1856  the 
sheriff  sold  this  parcel  on  a  judgment  against  Richard  and  the  pur- 
chaser sold  to  House.  In  the  action  for  partition  after  John's  death 
these  premises  were  again  set  off  to  Richard,  and  on  execution  against 
him  were  sold  to  Sheridan.  This  is  a  case  submitted  without  action, 
to  determine  as  to  which,  if  either,  has  the  title  to  this  parcel  of  land. 

The  decision  below  was  for  the  plaintiffs.     Defendant  appeals. 

This  court  agreed  that  under  our  statute  the  rule  in  Shelley's  Case 
could  not  apply  and  that  the  deed  from  John  Jackson  carried  only 
his  life  estate. 

Grover,  J.,  held  the  remainder   contingent  and  that  it  could  vest 
in   no  one  until   the  death  of  John,  by  which  event  his  heirs  would 
be  ascertained,  and    the   remainder   vest;    that  such   an  interest 
not  a  legal  estate  and  could  not  under  the  statutes  be  sold  on  execu- 
tion;   that    Richard's    share    of    the  life    estate    is  all  that    passed 


1  Also  Jackson  v.  Sheridan,  50  N.  Y.  660;  Jackson  v.  Littel,  56  N.  Y.  108;  House 
v.    U,  Cormick,  57  N.  Y.  310.  —  Ed. 


La.]  KINDS   OF   FUTURE    ESTATES:    REMAINDERS.  891 

under  the  first  execution  sale.  He  holds,  however,  that  under  the 
covenants  in  the  partition  deeds  the  shares  in  this  parcel  of  nine  of 
the  children  passed  by  estoppel  to  Richard  on  the  death  of  John  and 
so  inure  to  defendant;  that  the  estoppel  is  not  binding  on  the  infant 
child  of  Fanny,  and  that  since  said  chdd  was  a  party  to  the  partition 
suit  its  interest  in  this  parcel  passed  to  Richard  under  the  judgment 
in  partition  and  to  the  plaintiff  under  the  second  execution  sale. 
This  would  give  plaintiff  two-elevenths  and  defendant  nine-elevenths. 

Woodruff,  J.  — *  *  *  Nor  is  it  questioned  that  by  the  convey- 
ance of  John  Jackson  to  his  children,  they  acquired,  as  tenants  in 
common,  each  an  estate  for  his  life  in  one  undivided  eleventh  part 
of  the  land,  and  that  the  limitation  in  remainder  gave  them  as  his 
heirs  presumptive,  an  estate,  interest  or  expectation,  which,  at  his 
death,  they  still  being  alive,  would  become  in  them  severally  an 
absolute  fee. 

If  that  estate,  expectation  or  interest  was  alienable,  then  the  deed 
of  partition  executed  by  the  eleven  children  operated  to  place  Rich- 
ard Jackson,  one  of  their  number,  in  the  same  relation  to  the  lots 
assigned  and  conveyed  to  him  in  severalty,  in  which  he  was  before 
that  deed,  to  the  undivided  one-eleventh  of  the  whole  property; 
that  is  to  say,  he  held  an  estate  for  the  life  of  John  Jackson  in  the 
lots  so  allotted  and  conveyed  to  him  in  severalty,  and  he  would  be 
entitled  to  the  fee  of  each  one-eleventh  part  thereof,  provided,  in 
respect  to  each  eleventh,  the  grantor  thereof  should  survive  John 
Jackson.     *     *     * 

On  the  other  hand,  if  the  several  grantors  in  that  deed  had  no 
estate  or  interest  in  the  land  which  was  alienable,  it  conveyed  noth- 
ing, and  considering  that  deed  simply  as  a  conveyance,  the  defendant 
here  has  no  estate  in  the  lots,  because  the  estate  which  she  claims 
was  derived  from  a  conveyance  to  her,  or  to  her  grantor,  before  the 
death  of  John  Jackson.  Whether  that  deed  operated  as  an  estoppel, 
so  as  to  assure  to  Richard  Jackson  the  fee,  when  in  fact  the  grantors 
did  survive  John  Jackson,  and  thus  assured  to  her  the  title  which 
they  had  proposed  to  convey,  I  shall  not  consider. 

I  Drefer  to  rest  my  conclusions  upon  the  answer  which  should  be 
given  to  the  question  whether  the  children  of  John  Jackson  had, 
before  his  decease,  an  alienable  interest  or  estate  in  the  premises 
and  by  this  to  test  the  effect  of  the  partition  deed  and  the  validity 
of  the  defendant's  title.  And  in  my  opinion  the  consideration  of 
this  question  will  also  determine  whether,  if  alienable,  the  interest 
or  estate  of  Richard  was  subject  to  levy  and  sale  upon  execution 
against  his  property. 


892     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

The  circumstances  of  the  present  title  would  not  at  the  common 
law  have  presented  the  question.  The  abrogation  of  the  rule  in 
Shelley's  Case  has  created  a  state  of  things  which  at  the  common  law- 
could  not  exist;  thus  by  the  common  law  under  the  rule  in  Shelley's 
Case,  a  grant  to  A.  for  life,  with  remainder  to  his  heirs,  gave  to  A.  a 
fee;  no  question  under  the  law  of  remainders  could  therefore  arise 
under  such  a  grant.  And  that  is  the  case  now  before  us  in  which 
Samuel  Jackson  conveyed  to  John  Jackson  for  life  with  remainder 
to  his  heirs.  On  the  other  hand,  a  grant  to  A.  for  life  with 
remainder  to  the  heirs  of  B.  did  present  a  case  to  which  the  law  of 
remainders  was,  of  course,  applicable. 

In  considering  the  effect  of  the  grant  under  consideration,  made 
since  the  rule  in  Shelley's  Case  was  abrogated,  we  may  seek  for  an 
anology  in  the  example  last  named,  to  wit,  a  grant  to  A.  for  life  with 
remainder  to  the  heirs  of  B. 

In  such  case  the  limitation  over  to  the  heirs  of  B.  is  by  the  com 
mon  law  wholly  contingent.  It  is  not  only  impossible  during  the 
life  of  B.  to  say  who  will  be  his  heirs,  and  hence,  who  will  be 
entitled  to  claim  under  the  limitation,  but  if  B.  is  living  at  the  death 
of  A.,  the  remainder  over  will  wholly  fail,  because  it  cannot  take 
effect  at  the  expiration  of  the  precedent  freehold  estate  upon  which 
it  is  limited.  This  last  result  is  now  prevented  by  our  revised 
statutes,  1  R.  S.  §  725,  34,  and  therefore  the  limitation  over  is 
operative,  and  whenever  B.  dies  it  will  take  effect  for  the  benefit  of 
those  who  may  be  his  heirs.  In  such  case,  however,  so  long  as  B. 
lives,  A.  being  also  living,  there  can  be  no  vested  estate  in  remainder 
under  our  statutes,  because  there  are  no  persons  in  being  who  would 
have  an  immediate  right  to  the  possession  of  the  land  upon  the  ceas- 
ing of  the  precedent  estate;  that  is,  if  A.  were  to  die  to-day,  it  would 
still  be  uncertain  who  are  the  heirs  of  B.,  and,  therefore,  there  is  no 
one  who  under  the  grant  is  entitled  to  possession. 

But  now  suppose  B.  dies,  then  the  estate  would  vest,  and  for  the 
reason  that  there  are  notv  persons  in  being,  who,  if  A.  dies  to-day, 
will  be  entitled  to  immediate  possession.  Whether  the  estate  or 
interest  can  be  defeated  by  the  death  of  such  persons,  or  by  any 
other  future  event  or  not,  their  interest  is  vested  according  to  the 
very  terms  of  our  statute. 

It  is  this  precise  alteration  of  circumstances  which  furnishes 
examples  within  the  contemplation  of  our  statute  in  its  definition  of 
a  "  vested  future  estate  "  and  a  "  contingent  future  estate." 

1.  An  estate  is  vested  where  there  is  a  person  in  being  who  will 
take  if   the  precedent  estate  then  terminates. 

2.  An  estate  is  contingent  while  the  person  to  whom     .     .     .     it  is 


I.  2.]  KINDS   OF    FUTURE   ESTATES:    REMAINDERS.  893 

limited   is  uncertain,  i.  e.,  while  it  is  uncertain  who  will  take  if  the 
precedent  estate  then  terminates. 

One  definition  is  the  converse  of  the  other,  and  they  are  to  be  read 
together. 

In  the  case  supposed,  then,  on  the  death  of  B.,  A.  being  still  alive, 
the  heirs  of  B.  are  in  a  condition  to  take  if  A.  should  then  die,  and 
their  estate  is,  by  the  terms  of  the  statute,  a  future  vested  estate. 
This,  in  my  judgment,  illustrates  the  new  case  made  by  our  statute 
abrogating  the  rule  in  Shelley  s  Case. 

Thus  John  Jackson  took  a  life  estate;  and  every  child  of  his,  bear- 
ing to  him  such  relation,  that,  at  any  moment,  he  would,  if  John 
Jackson  then  died,  be  entitled  to  immediate  possession,  and  to  hold 
in  fee,  had  a  "  vested  future  estate"  under  our  statute.  It  was 
vested,  because  by  the  death  of  John  Jackson  the  precedent  estate 
terminates,  and  such  child,  then  in  being,  becomes  eo  instanti  entitled 
to  immediate  possession,  which  is  the  precise  character  of  one  who 
in  the  language  of  our  statute  has  a  future  vested  estate. 

This  vested  estate  might  be  defeated,  because  such  child  might 
die  before  his  father;  but  the  statute  has,  nevertheless,  made  his 
estate  a  vested  estate,  notwithstanding  the  grant  under  which  he 
claims  has  annexed  a  further  condition  which  may  defeat  it. 

In  short,  the  statute  has  made  this  remainder,  although  its  bene- 
ficial enjoyment  depends  upon  the  condition  that  he  survives  his 
father,  a  vested  remainder  liable  to  be  defeated  by  a  condition 
subsequent. 

Such  an  estate  is,  in  its  nature,  devisable,  descendible  and  aliena- 
ble. 1  R.  S.  725,  §  35.  This  is  made  a  general  rule,  going  much 
farther,  and  embracing  all  expectant  estates.  In  this  particular 
case,  the  death  of  the  party  in  whom  it  is  vested,  before  the  termina- 
tion of  the  precedent  estate,  would  defeat  it,  but  this  does  not  change 
its  legal  character;  it  is  still  a  vested  estate,  although  death  may 
defeat  it.  It  is,  therefore,  alienable,  subject  to  that  contingency, 
and  the  deed  of  partition  was  therefore  inoperative. 

The  question  remains,  could  this  estate,  vested  in  interest,  but 
liable  to  be  defeated  by  the  death  of  the  person  to  whom  it  was 
limited,  be  sold  under  execution? 

Our  statutes  declaring  the  lien  of  judgments,  and  authorizing  sales 
by  virtue  of  execution,  apply  to  "  land,  tenements,  real  estate  and 
chattels  real."  2  R.  S.  359,  §  3;  363,  §  2;  367,  §  24  et  seq.\  373, 
§   61  et  seq. 

If  the  words  "  lands  or  real  estate  "  embrace  such  an  estate  as 
that  in  question,  then  it  was  subject  to  sale  on  execution,  and  the 
defendant  acquired  title,  defeasible  as  to  any  share  of  one-eleventh, 


894    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

by  the  death  of  one  of  the  eleven  children  of  John  Jackson  before 
his  decease,  and  actually  defeated,  as  to  the  one-eleventh  conveyed 
to  Richard  Jackson  by  his  sister,  Fanny  Baldwin,  who  died  before 
her  father. 

Concede  that  a  possibility  of  reverter,  as  in  4  Den.  412,  a  naked 
possibility,  as  in  Edwards  v.  Varick,  5  Id.  664,  or  a  merely  equitable 
interest,  trustees  being  in  possession,  holding  the  legal  title,  as  in 
Brewster  v.  Striker,  2  N.  Y.  19;  or  other  purely  equitable  interest, 
unaccompanied  by  possession,  as  in  Sage  v.  Cartwright,  9  Id.  49,  or 
a  contingent  remainder,  as  in  Striker  v.  Mott,  28  Id.  82,  cannot  be 
sold  on  execution.  This  is  far  short  of  holding  that  a  vested  estate 
in  remainder,  only  liable  to  be  defeated  by  a  subsequent  event,  may 
not  be. 

The  subject  of  sale  here  was  an  estate  in  the  land,  a  legal  estate, 
vested  in  interest  by  the  very  terms  of  the  statute,  and  alienable  by 
the  owner  thereof;  this  is  "  real  estate,"  and  by  such  name  is  sub- 
ject to  levy  and  sale. 

For  these  reasons,  I  think  the  judgment  of  the  Supreme  Court 
must  be  reversed. 

The  appellant  appears,  by  the  pleadings,  to  claim  but  ten-elevenths 
of  the  premises,  and  seems  to  concede  that  the  death  of  Fanny 
Baldwin  defeated  her  title  to  one-eleventh  of  the  premises.  This  is 
clearly  so  at  law;  and  it  is  not  claimed  that  there  are  any  equities 
arising  out  of  the  partition  deeds  which  inure  to  the  benefit  of 
the  defendant  to  make  her  purchase  effectual  as  to  that  one-eleventh. 

The  judgment  should  be  reversed,  and  judgment  ordered  affirming 
the  title  of  the  defendant  to  ten-elevenths  and  of  the  plaintiff  to 
one-eleventh  part  of  the  premises  in  fee. 

A  majority  of  the  judges  concurred  in  this  opinion. 

Moore  v.  Littel,  41  N.  Y.  66  (1869).  By  the  partition  deeds  of 
1848  nine  of  the  children  of  John  Jackson  set  off  by  warranty  deed 
to  Parmenus  and  Edward  a  certain  lot.  Parmenus  and  Edward 
mortgaged  the  premises,  the  mortgage  was  foreclosed  and  plaintiff 
became  the  owner  in  1855.  This  action  is  ejectment  against  a  lessee 
(in  i860)  of  one  of  the  mortgagors.  Two  questions  are  said  to  arise. 
Had  the  children  of  John  Jackson  any  interest  in  the  fee  of  the 
premises,  which  they  could  convey  at  the  time  when  the  deeds  in 
partition  were  executed  and  if  not,  are  they  estopped  by  the  parti- 
tion deeds? 

Woodruff,  J. —  *  *  *  This  liability  of  the  precedent  life  estr.te 
to  I"-  determined  before  the  actual  decease  of  the  tenant  for  life, 
has  led  to  a  discussion  of  the  question  whether,  after  a  grant  to  one, 


I.  2.]  KINDS   OF   FUTURE    ESTATES;   REMAINDERS.  895 

so  long  as  he  lives  or  so  long  as  he  lives  a  natural  life,  and  after  his 
decease,  to  another,  does  not  necessarily  create  a  contingent 
remainder. 

This  was  the  decision  of  the  courts  in  New  Hampshire  in  Hall  v. 
JVu/e,  38  N.  H.  422,  and  Hayes  v.  Taber,  41  N.  H.  421.'  But  this 
decision  has  been  the  subject  of  criticism,  and  cannot  be  said  to  be 
generally  approved,  while  the  contrary  has  often  been  stated  and 
held  on  the  ground  that  it  is  uncertainty  in  the  right  of  enjoyment, 
and  not  the  uncertainty  of  its  actual  enjoyment  that  renders  an 
estate  contingent. 

And  this  suggests  again  the  inquiry  whether,  if  it  be  inevitably 
true  in  a  given  case  that  the  determination  of  the  life-estate  cannot 
happen  without  eo  instanti  entitling  the  remainderman  to  possession, 
he  has  not  a  vested  remainder. 

In  general,  the  answer  must  and  will  be  in  the  affirmative.  But  it 
is  said  that  where  the  remainder  is  limited  to  the  heirs  of  the  tenant 
for  life,  there,  even  if  you  can  exclude  all  possibility  of  terminating 
the  particular  estate  by  means  other  than  the  death  of  the  tenant, 
no  one  can  have  a  vested  estate  in  remainder,  because  two  events, 
in  legal  theory,  must  happen  before  his  right  is  absolute:  1.  The 
tenant  must  die  and  terminate  the  particular  estate.  2.  The  tenant 
must  die  and  so  ascertain  his  heirs. 

That  although  the  single  fact,  to  wit,  the  death  of  the  tenant, 
accomplishes  both  results,  and  although  if  that  death  should  now 
happen,  there  is  a  person  immediately  entitled  to  take,  still,  the 
character  of  heir  must  be  gained  before  the  remainder  can  vest  in 
possession,  and  the  remainder  must  vest  on  the  instant  of  the  death; 
and  so  in  theory,  the  former  must  precede  the  latter. 

It  would  be  doing  no  violence  to  good  sense  to  say  that,  when  the 
same  fact,  the  death  of  the  tenant  for  life,  at  the  same  instant  must 
determine  who  is  heir  and  vest  the  remainder  in  possession,  then  it 
is  true  that  there  is  at  any  time  an  ascetained  person  who  has  capacity 
to  take  if  the  present  estate  then  determines.2 

In  such  case,  the  test  proposed  by  Nelson,  Ch.  J.,  in  Hawley  v. 
James,  16  Wend.  137,  would  be  apt  to  determine  that  a  remainder  is 
vested  in  any  case  in  which  the  particular  estate  can  only  be  deter- 
mined by  the  death  of  the  tenant  for  Ufa,  viz.,  when  nothing  can 

1 '■  Inexplicable  aberrations  of  an  able  but  eccentric  court."  Gray's  Rule 
against  Perpetuties,  §  103,  n.  — Ed. 

*  Relying  on  Chancellor  Kent's  assertion  that  the  New  York  definition  (§  30 
R.  P.  L.)  "appears  to  be  accurately  and  fully  expressed,"  certain  courts  have 
called  such  a  remainder  as  this  vested  on  supposed  common  law  principles. 
See  Gray's  Rule  against  Perpetuities,  £  107  n.  —  Ed. 


896     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

prevent  such  remainder  from  vesting  in  possession  but  the  death  of 
the  remainderman  before  the  termination  of  the  life  estate. 

It  is  not,  however,  in  my  judgment,  profitable  or  necessary  to  the 
view  which  I  intend  to  suggest,  that  I  should  pursue  the  considera- 
tion of  the  peculiar  case  created  by  the  grant  now  in  question,  if  it 
were  to  be  governed  by  the  refinements  of  the  common  law,  under 
the  influence  of  its  feudal  customs,  restrictions,  complications,  and 
of  the  ingenuity  and  learning  sometimes  employed  to  avoid  rather 
than  give  rational  effect  to  the  intentions  of  parties. 

It  was  one  of  the  objects  of  our  Revised  Statutes  to  reduce  to 
greater  simplicity  the  rules  governing  the  taking,  holding,  and 
transmitting  of  real  estate,  and,  espectially,  to  favor  the  vesting  of 
estates  and  the  alienability  thereof. 

And  in  my  judgment,  the  statute  definition  of  remainders  vested 
and  contingent,  in  connection  with  other  statutes,  forming  part  of 
an  entire  system,  has  made  the  answer  to  some  of  the  questions 
above  proposed,  simple  and  easy;  and  I  have  occupied  time  in  the 
preceding  discussion,  chiefly  that  the  design  and  meaning  of  the 
statute  might  be  more  clearly  apparent.     *     *     * 

It  was  argued  on  this  appeal,  that  definitions  of  vested  and  con- 
tingent remainders  in  adjudged  cases,  and  text  writers  have  not  been 
successfully  attempted,  and  that  our  revisors  did  not  attempt  to  alter 
the  law,  or  do  more  than  describe  what  had  already  been  adjudged 
to  be  vested,  and  what  to  be  contingent. 

In  my  opinion,  they  have  defined  a  vested  remainder  in  terms  that 
do  clearly  avoid  much  of  the  uncertainty  in  which  the  subject  was 
before  involved,  and  in  such  terms  that  it  is  now  true,  that  if  there 
be  a  person  in  being  of  whom  it  can  be  positively  averred,  that  if  the 
estate  for  life  were  now  to  cease  he  would  have  an  immediate  right 
of  possession,  he  has  a  vested  remainder;  and  notwithstanding  sub- 
sequent events  may  defeat  it,  the  operation  of  the  statute  itself  is  to 
make  them  subsequent  conditions. 

Why  was  a  remainder  to  the  heirs  of  A.  after  the  expiration  of  the 
life-estate  of  B.  contingent  at  the  common  law?  Because  B.  might 
die  before  it  was  ascertained  who  are  the  heirs  of  A. 

Why  is  it  said  that  a  remainder  to  the  heirs  of  A.,  after  the  deter- 
mination of  a  life-estate  in  A.  is  contingent?  Because  the  life-estate 
may,  at  the  common  law,  be  determined  before  it  is  ascertained  who 
are  the  heirs  of  A. 

I  [em  e  the  introduction,  into  the  various  definitions,  of  the  qualifi- 
es so  much  insisted  upon  in  the  argument  of  this  appeal,  that 
no  ■  51  ite  can  vest  until  the  person  in  whom  it  is  to  vest  shall  be 
rtained;   .'iml    from    this   it   follows,  if   there   be   some   condition 


I.  2.]  KINDS   OF   FUTURE   ESTATES:    REMAINDERS.  897 

which  must  be  fulfilled,  before  the  person  who  will  take  on  the  deter- 
mination of  the  precedent  estate  is  known,  there  can  be  no  vested 
remainder. 

But  here  suppose,  that  the  one  sole  condition,  to  wit:  The  deter 
mination  of  the  precedent  estate  is  all  that  is  necessary  to  entitle  a 
person  in  esse  to  take,  it  is  not  denied  that  such  a  person  has  a  vested 
remainder.  Why,  then,  if  the  precedent  estate  can  only  be  deter- 
mined by  the  death  of  the  life  tenant,  and  by  that  death  the  heirship 
is  alike  also  determined,  is  not  the  statute  definition  in  all  respects 
satisfied?  It  makes  the  precise  case  described,  and  I  deny  the  right 
to  interpolate  qualifications  drawn  from  the  refined  reasoning  of  cases 
or  text  books,  prior  to  the  statute,  to  limit  the  operation  of  its 
plain  terms. 

Now,  in  the  case  before  us  of  an  estate  in  John  Jackson  for  his 
natural  life,  with  remainder  to  his  heirs,  I  know  of  nothing  other 
than  the  death  of  John  Jackson  which  would  determine  the  life- 
estate  which  was  vested  in  him;  his  interest  may  cease  by  convey- 
ance or  other  transfer,  but  the  life-estate  will  continue  until  his 
natural  death.  He  could  do  nothing  which  would  defeat  the 
remainder.      1  R.  S.  725,  §  32. 

He  could  do  nothing  which  would  extinguish  the  life-estate  by 
merger  in  the  inheritance. 

His  alienation,  or  attempted  alienation,  by  feoffment,  fine  and 
recovery,  or  otherwise,  of  a  greater  estate  than  his  own,  could  not 
forfeit  the  life-estate,  or  determine  it,  because  feoffment  and  livery 
of  seisin  are  abolished  here;  we  have  no  fine  and  recovery;  and, 
finally,  conveyances  here  by  a  tenant  for  life,  although  in  form  con- 
veying a  greater  estate  than  he  possesses,  do  not  work  a  forfeiture 
of  his  estate,  but  will  pass  to  the  grantee  such  estate,  title  and 
interest   as    he    can    lawfully   convey.     1    R.    S.    738,   §   1,   p.    739,. 

§§  J43,  M5- 

Whatever  effect  the  disclaimer  of  his  landlord's  title,  by  a  tenant 

for  years,  in  any  possible  form,  by  record  or  otherwise,  may  have 
upon  his  rights  as  between  him  and  his  landlord,  no  disclaimer  by 
John  Jackson  could  operate  to  extinguish  the  life-estate.  See  Jack- 
son v.  JVoves,  11  J.  R.  33;  Jackson  v.  Vincent,  4  Wend.  63$;  1  Wash- 
burn on  Real  Property,  92. 

Conviction  of  felony  no  longer  works  a  forfeiture.      2  R.  S.  701, 

§  22- 

And  whatever  was  the  effect  of  an  attainder  of  treason  in  England, 

it  is  clear  that  here,  since  it  is  enacted  that  no  act  of  the  tenant  for 

life,  nor  any  destruction   of  the   precedent  estate   shall   defeat  the 

remainder,  no  outlawry  upon  conviction  of  treason  which  operates  as 

LAW  OF  PROP.  IN  LAND  —  57 


898    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

a  forfeiture  during  his  life  only,  2  R.  S.  656,  §  3,  can  have  any 
effect  except  as  a  transfer  of  such  life-estate. 

Our  statutes  have,  therefore,  taken  the  case  out  of  the  condition 
of  a  contingent  remainder  at  the  common  law,  and  have  brought  it 
within  the  statute  definition;  and  for  the  reason  that  in  respect 
to  any  child  of  John  Jackson,  it  was,  at  any  and  every  moment  of 
his  life,  inevitable  and  unquestionably  true  that  if  John  Jackson 
then  died,  he  would  have  an  immediate  right  of  possession  of  the 
lands.  During  John  Jackson's  life  he  was  not  heir,  and  had  not 
such  right;  the  one  event,  which  might  at  any  moment  happen, 
determined  the  life-estate,  and  eo  instanti  being  "  heir,"  he  was 
entitled  to  possession;  not  by  descent,  but  by  "  purchase,"  the 
statute  declares. 

But  it  has  been  argued  that  this  construction  of  the  definition  of 
vested  remainders,  leaves  very  little  room  for  the  application  of  the 
definition  of  a  contingent  remainder,  which  immediately  follows,  and 
that  it  withdraws  entirely  from  the  test  of  their  character,  in  this  re- 
spect, the  certainty  or  uncertainty  of  the  person  entitled  in  remainder. 

So  far  as  it  can  be  shown  that  the  statute,  or  any  sensible  con- 
struction thereof,  tends  to  the  holding  of  estates  vested,  rather  than 
contingent,  so  far  that  construction  is  strengthened  and  sus- 
tained by  the  policy  of  the  law,  which  always  favored  such  holding. 
And  it  will  be  no  evil  in  this  country  that  those  interests,  which,  by 
reason  of  contingencies  or  possibilities,  are  often  held  withdrawn 
from  the  ordinary  incidents  of  property,  are  few. 

But  the  construction  given  to  the  definition,  does  by  no  means 
destroy  the  effect  of  the  definition  of  a  contingent  remainder. 

That  definition  is  to  be  construed  in  connection  with  the  other,  if 
there  is  no  person  who  would  have  an  immediate  right  of  possession 
upon  the  ceasing  of  the  intermediate  or  precedent  estate,  i.  e.,  if  no 
person  can  be  found  of  whom  this  can  now  be  avowed,  either  because 
if  that  precedent  estate  should  now  cease,  it  would  be  uncertain  who 
was  entitled,  or  whether  the  event  upon  which  it  was  limited  would 
happen;  then  the  remainder  is  contingent.     *     *     * 

2d.  If  the  preceding  reasoning  be  wholly  fallacious,  and  be  deemed 
to  give  an  interpretation  to  the  statute,  and  a  construction  to  the 
law,  which  is  unsound,  I  am  wholly  unable  to  see  how  the  result  to 
the  present  appellants  would  be  different. 

The  alternative  insisted  upon  is,  that  since  our  statutes,  and  not- 
withstanding <>ur  statutes,  the  children  of  John  Jackson  had  only 
contingent  remainders  in  fee  of  the  land,  whereof  they  made  par- 
tition,  and  that,  therefore,  they  conveyed  nothing  by  the  deeds  they 
severally  executed. 


I.  2.]  KINDS   OF   FUTURE   ESTATES:    REMAINDERS.  899 

Here  again,  the  change  made  by  our  Revised  Statutes  is  important. 

A  contingent  remainder,  it  is  said  in  the  books,  was  alienable 
when  the  uncertainty  which  made  it  contingent  was  in  the  event 
upon  which  it  was  limited  to  take  effect,  and  was  only  inalienable 
when  it  was  uncertain  to  whom  the  remainder  was  limited;  and  this 
distinction  is  affirmed  and  relied  upon  by  the  counsel  on  this  appeal. 
See  Washburn  on  Real  Prop.  237-8;  Williams  on  Real  Prop.  232-4; 
Preston  on  Estates,  76.  Though  this  distinction  has  often  been 
overlooked  or  denied.  See  Striker  v.  Mott,  28  N.  Y.  82;  Williams 
on  Real  Prop.  231;  4  Kent,  261-2. 

It  is  now  insisted  that  our  statute  has  both  affirmed  and  perpetu- 
ated this  distinction. 

The  frame  of  the  statute,  and  its  language,  are  inconsistent  with 
this;  and  the  whole  policy  of  our  law  which  encourages  the  free 
transmissibility  of  property  of  every  description  is  in  marked 
hostility  to  it. 

As  above  shown,  "  expectant  future  estates  "  as  defined  in  the 
statute,  do  expressly  include  all  remainders,  whether  vested  or  con- 
tingent. Not  only  so,  the  "  expectant  future  estates,"  of  which  the 
article  treats,  are  declared  to  be  "  contingent,  whilst  the  person  to 
whom,  or  the  event  upon  which  they  are  limited  to  take  effect 
remains  uncertain."  And  notwithstanding  the  uncertainty  in  the 
person  who  may  in  the  future  be  entitled  thereto,  the  expectancy 
or  estate  is  declared  to  be  a  "  remainder,"  and  "  it  may  be  created 
and  transferred  by  that  name."  Nothing  can  more  clearly  declare, 
therefore,  that  a  remainder,  which  is  contingent  because  the  person 
to  whom  it  is  limited  is  uncertain,  is  an  expectant  estate.  And  there- 
upon, the  statute  declares,  that  expectant  estates  are  descendible, 
devisable,  and  alienable. 

Instead  of  perpetuating,  this  abrogates  all  distinctions,  and  gives 
to  all  expectant  estates,  of  whatsoever  description,  and  whether 
vested  or  contingent,  and  whether  contingent  upon  an  event  which 
may  never  happen,  or  by  reason  of  uncertainty  in  the  person,  the 
character  or  quality  of  alienability. 

It  is  argued  that  another  section  of  the  statute  restrains  the  effect 
of  the  first,  to  wit:  "  The  absolute  power  of  alienation  is  suspended 
when  there  are  no  persons  in  being  by  whom  an  absolute  fee  in  pos- 
session can  be  conveyed,"  and  such  suspension  for  more  than  two 
lives  in  being  shall  render  the  future  estate,  which  works  that  result, 
void. 

These  provisions  were  not  intended,  and  do  not  operate  to  restrain 
alienation  at  all;  they  are  made  and  intended  expressly  to  prevent 
such  restraint,  except  within  brief  limits. 


900     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

They  do  not  import  that  the  contingent  remainder  may  not  be 
aliened,  but  only  when  contingent  remainders  are  so  limited  that, 
for  a  period  not  authorized,  an  absolute  fee  cannot  be  conveyed, 
the  future  estate  having  this  effect  shall  be  void. 

Indeed  the  alienation  of  the  contingent  remainder  is  entirely  con- 
sistent with  inability  to  convey  an  absolute  fee.  Where  the  succes- 
sive estates  are  all  valid,  every  person  in  being  having  any  vested  or 
contingent  interest  may  often  convey,  and  they  may  be  entirely 
capable  of  conveying,  and  yet  no  absolute  fee  be  conveyed.  It  is  to 
prevent  this,  for  too  long  a  period,  that  the  statute  declares  the 
effect  of  such  a  restraint  of  alienation. 

These  are  the  words,  also,  of  the  statute,  "  The  absolute  power  of 
alienation  is  suspended  when  there  is  no  person  by  whom  an  abso- 
lute fee  in  possession  can  be  conveyed;  "  this  is  not  saying  that  a 
future  estate  in  expectancy  cannot  be  aliened  when  there  is  no  person 
by  whom  an  absolute  fee  can  be  conveyed;  and  yet,  this  is  the 
inference  urged  upon  us. 

It  might  as  well  be  argued  that  the  precedent  life-estate  cannot  be 
aliened  when  there  is  no  person  by  whom  an  absolute  fee  can  be 
conveyed;  and  it  is  like  the  argument  that  because  an  estate  is 
limited  to  an  unborn  child,  such  limitation,  perse,  imparts  to  the 
estate  itself  the  quality  of  inalienability,  because,  until  the  child  is 
born,  he  cannot  convey.  The  contingency  of  birth  may  make  an 
estate  contingent,  but  the  physical  fact  of  inability  to  convey  does 
not  affect  its  quality.  It  may  be  a  remainder  in  fee  simple,  or  a 
term  for  years,  or  for  life;  their  quality  of  alienability  does  not 
depend  upon  the  question  whether  the  remainder  is  limited  to  one 
who  has  legal  or  physical  capacity  to  convey,  but  upon  its  essential 
nature.  If  contingent,  then  the  statute  says  it  is  alienable,  /'.  e.,  it 
has  that  character  and  quality. 

Whether  the  absolute  fee  in  land  may  not  be  so  situated  that  the 
actual  alienation  of  all  present  vested  and  contingent  interests  will 
not  avail  to  convey  an  absolute  fee  in  possession,  is  a  totally  differ- 
ent question,  and  one  on  which  the  alienability  of  the  contingent 
remainders  in  nowise  depends. 

It  is,  of  course,  true  that  in  the  present  case  the  contingent  estate 
of  no  child  of  John  Jackson  could  descend,  or  be  devised;  but  this 
is  not  because  the  statute  has  not  given  to  all  contingent  remainders 
the  quality  of  being  devisable,  descendible  and  alienable,  but  because 
in  the  special  instance  before  us  the  death  of  such  child  would 
defeat  it.  The  statute  is  to  be  applied  according  to  the  nature  of 
the  contingency,  and  in  consistency  with  it. 


I.  2.]  KINDS   OF   FUTURE   ESTATES:   REMAINDERS.  9OI 

An  expectant  estate  for  life,  clearly  vested,  is  alienable,  but  is  not 
descendible  nor  devisable  in  its  very  nature. 

The  statute  designed  to  give  to  ail  expectant  estates,  vested  or 
contingent,  the  same  character  and  quality  in  these  respects.  The 
actual  ability  to  devise  or  transmit,  or  to  convey,  and  the  efficiency 
of  alienation  to  confer  an  absolute  fee,  it  was  not  the  purpose  of  the 
statute  to  declare.  In  the  case  above  referred  to  (Lawrence  v. 
Bayard},  the  chancellor  declares  that  the  statute  making  expectant 
estates  alienable  includes  every  present  right  or  interest,  either 
vested  or  contingent,  which  may  by  possibility  vest  in  possession  at 
a  future  day.  The  mooted  question  whether  a  mere  possibility, 
coupled  with  an  interest,  is  capable  of  being  conveyed  or  assigned  at 
law  is,  therefore,  forever  put  at  rest  in  this  State.  Miller  v.  Emans, 
in  this  court,  19  N.  Y.  384,  supports  the  alienability  of  remainders, 
though  contingent.  Upon  this  ground,  if  I  am  wholly  wrong  in  the 
point  first  discussed,  the  judgments  should  be  affirmed. 

Grover,  J.,  dissents  on  all  points.  All  the  judges,  except  Grover, 
agreed  that  the  interest  was  alienable,  whether  vested  or  not. 

House  v.  Jackson,  50  N.  Y.  161  (1872).  Under  the  partition 
deeds  Edward  Jackson  was  assigned  the  lot  in  question.  His  share 
was  sold  out  on  execution  in  1857  and  this  title  came  to  plaintiff.  In 
a  partition  suit  defendant,  the  widow  of  Edward,  who  died  in  1863, 
claims  dower. 

Peckham,  J. —  *  *  *  I  see  no  objection  to  the  merger  of  this 
life-estate  of  John  Jackson,  the  father,  in  the  vested  remainder  of 
his  son,  the  husband  of  Mary  L.  Jackson,  under  the  decision  of  Moore 
v.  Littel,  41  N.  Y.  66.  This  is  a  part  of  the  same  estate  there 
adjudged.  If  the  son  should  die  in  the  lifetime  of  the  father,  I  think 
the  better  opinion  is  that  the  estates  divide  again  and  the  widow  is 
then  not  entitled  to  dower. 

Moore  v.  Littel,  holds  the  estate  of  the  son,  prior  to  the  death  of 
the  father,  to  be  a  vested  remainder;  the  son  was  also  seised  in  fact 
and  in  law  of  his  father's  life-estate,  and  then  became  seised  of  the 
inheritance,  subject  to  being  defeated  by  his  own  death,  prior  to  the 
decease  of  his  father.  In  such  case  I  think  the  wife  has  dower,  sub- 
ject to  being  defeated  by  the  same  means.  The  plaintiff  claims  that 
the  sale  of  the  son's  life-estate  upon  execution  cut  off  his  title. 

It  is  a  settled  rule  of  the  common  law,  laid  down  in  the  elementary 
books,  that  after  dower  has  once  attached,  it  cannot  be  extinguished 
or  suspended  by  any  act  of  the  husband  alone,  in  the  nature  of  alien- 
age or  charge.     Park,  191. 


902     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

The  rule  is  adopted  in  much  broader  language  in  our  statute, 
i  R.  S.  742,  §  16. 

At  common  law  there  might  have  been  an  intermediate  estate  for 
years  and  yet  the  wife  had  dower  —  as  estates  for  years  were  not 
highly  regarded  at  common  law.  But  cessit  executio  during  the  term. 
Com.  Dig.  Dower,  A.  6;   Perk.  §  336. 

So,  if  there  be  a  mesne  remainder  for  life,  who  surrenders  his 
estate  to  the  tenant  for  life  (Id.),  though  the  surrender  be  upon  con- 
dition, for  the  estate  is  gone  until  the  condition  be  broken.     Id. 

In  this  case  there  is  no  intervening  estate.  The  husband  is  seised 
of  the  life-estate  in  fact  and  in  law,  and  he  is  also  seised  of  a  vested 
remainder  as  adjudged,  subject  to  be  defeated  of  the  remainder  by 
his  death  prior  to  that  of  his  father. 

This  is  such  a  seisin  as  prevents  the  alienation  of  the  estate  or  its 
incumbrance,  to  the  prejudice  of  the  wife's  dower.  In  other  words, 
dower  attaches  to  such  an  estate,  subject  to  be  defeated  as  above 
stated,  and  as  the  husband  survived  the  father,  his  dower  becomes 
absolute.  The  decree  must  be  modified  according  to  these  views, 
with  costs  to  her  —  no  costs  to  either  of  the  others,  and  the  cause 
remitted  for  further  proceedings.1 


CARMICHAEL  v.  CARMICHAEL. 
43  New  York,  346.  —  1868. 

Clerke,  J.  —  Daniel  Carmichael  died  September  3d,  1849,  leaving 
the  defendant,  his  widow,  and  six  children,  him  surviving.  The 
eldest  of  them  (Otis)  was  the  child  of  a  first  marriage.  He  did  not 
live  with  his  father,  but  lived  in  Middletown,  in  this  State,  where 
his  father  provided  for  him.  At  the  time  of  his  father's  death  he 
was  an  invalid,  and  he  died  about  two  years  afterward.  He  married 
the  plaintiff  soon  after  his  father's  death,  the  engagement  having 
been  made  prior  to  that  event;  he  left  one  child.  Daniel  Carmichael, 
shortly  previous  to  his  death,  made  a  will,  of  which  the  following  is 
a  copy:     [  The  material  part  only  is  given  here.] 

"  After  the  payment  of  all  my  debts,  I  give,  devise  and  bequeath 

1  See  also  Mead  v.  Mitchell,  17  \T.  V.  210;  Minot  v.  Minot,  17  App.  Div.  (N.  Y.) 
521:  Lawrence  v.  Bayard^  7  Paige  Ch.  70;  Coster  v.  Lorillard,  14  Wend.  310. 
In  the  last  named  case  the  judge  boldly  declares  such  a  remainder  both  vested 
and  1  intingent.  See  also  discussion  of  this  subject  in  Chaplin  on  Suspension  of 
the  Power  of  Alienation,  §§  2S-52,  and  Gray's  Rule  Against  Perpetuities, 
;;  [04-108.  —  Ed. 


I.   2.]  KINDS   OF   FUTURE   ESTATES:    REMAINDERS.  903 

ail  and  singular  my  estate  and  property,  of  whatsoever  kind,  and 
wheresoever  the  same  may  be  situate,  unto  my  belowed  wife  Eliza, 
for  and  during  the  term  of  her  natural  life;  and  from  and  after  her 
decease,  then  I  give,  devise  and  bequeath  the  same  unto  my  children, 
who  may  be  then  living,  in  equal  parts,  share  and  share  alike  —  it 
being  distinctly  understood  that  the  part  or  share  of  my  son,  Otis 
Carmichael,  under  said  division  or  appropriation,  shall  be  held  and 
invested  by  my  surviving  executor,  his  heirs  and  assigns,  in  trust,  to 
keep  the  same  well  and  securely  invested  during  the  lifetime  of  my 
said  son,  and  to  pay  over  to  him,  my  said  son,  the  rents,  income  and 
interest  thereof  as  received,  and  to  dispose  of  and  apply  the  princi- 
pal of  said  share  as  my  said  son  may  by  his  last  will  and  testament, 
or  any  instrument  in  the  nature  thereof,  direct,  limit  and  appoint. 
And  in  default  of  such  direction,  then  to  the  right  heirs  of  my  said 
son,  under  the  intestate  laws  of  New  York."     *     *     * 

This  will  was  admitted  to  probate  on  or  about  the  15th  of  October, 
1S49,  before  the  surrogate  of  the  county  of  Broome.  Otis  Carmichael, 
previous  to  his  death,  made  a  will,  by  which  he  gave  to  his  wife  (the 
plaintiff)  the  annual  sum  of  $500  during  her  natural  life;  and  he 
further  gave  unto  her,  in  trust,  for  the  maintenance  and  education 
of  his  son,  all  the  annual  proceeds  of  his  real  and  personal  property, 
until  his  son  should  attain  the  age  of  twenty-one  years.  He  secondly 
devised  and  bequeathed  unto  his  son,  all  his  real  and  personal  prop- 
erty, subject  to  the  annual  payments  given  to  his  wife. 

This  action  is  brought  b)-  the  widow  of  Otis,  for  the  purpose  of 
compelling  the  defendant,  executrix  of  the  will  of  Daniel  Carmichael, 
to  render  an  account  of  his  property  and  effects,  which  may  have 
come  into  her  hands  as  such  executrix;  and,  after  the  accounting, 
it  is  prayed  that  the  same  may  be  divided,  and  that  the  defendant  be 
adjudged  to  pay  over  to  the  plaintiff,  one-sixth  part  of  the  estate  of 
Daniel  Carmichael,  with  interest  thereon  from  January  1,  1850. 

The  defendant  demurred  to  the  complaint,  upon  the  ground,  first, 
that  the  plaintiff  had  no  legal  capacity  to  sue,  and,  second,  that  the 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action. 

The  demurrer  was  sustained,  both  at  the  Special  and  General  Term. 

The  demurrer  was  properly  sustained.  The  widow  of  Daniel  Car- 
michael is  living,  and,  by  the  express  provision  of  his  will,  she  is 
entitled  to  all  the  use  and  enjoyment  of  his  property  during  the  term 
of  her  natural  life;  and  she  is  under  no  obligation  to  account  to  any 
of  the  children,  for  the  purpose  of  having  it  divided  among  them. 
The  estate  does  not  vest  in  remainder  until  her  death;  and  then  it 
vests  only  in  those  children   who  shall  be  living  at  the  time  of  her 


904     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

death.      The  plaintiff,  under  the  will  of  Otis  Carmichael,  acquired  no 

estate  or  interest  in  the  property  of  Daniel  Carmichael,  and  has,  in 

fact   no  standing  in  court. 

Judgment  affirmed. 


HENNESY  v.  PATTERSON. 
85  New  York,  91.  —  1881. 
[Reported  herein  at  p.  868. ]> 


d.   Alternate  remainders} 

WHITESIDES   v.  COOPER. 

115  North  Carolina,  570.  —  1894. 

[Reported  herein  at  p.  877.] 


WADDELL  v.  RATTEW. 

5  Rawle  (Pa.),  230.  —  1835. 

[Reported  herein  at  p.  — .] 


MORSE  v.  PROPER. 

82  Georgia,  13.  —  188S. 
[Reported  herein  at  p.  8S2.]3 

e.   Acceleration  of  remainders. 

Andrews,  J.,  in  PURDY  v.  HAYT. 

92  New  York,  446.  —  1883. 

It  is  provided  by  the  seventeenth  section  of  the  article  of  the 
Revised  Statutes,  before  referred  to,  that  "  successive  estates  for 
lift;  shall  not  be  limited   unless  to  persons  in  being  at  the  creation 

1  For  comment  on  this  case  see  Minot  v.  Minot,  17  App.  Div.  (N.  Y.),  521,  and 
Chaplin,  ££  49-51.     See  n.  37  Hammond's  Ed.  2  Blk.  Com.  —  Ed. 
'See  N.  Y.  R.  P.  L.  §41.— ED. 
Foi  ■;  1  ase  in  which  the  rule  in  Shelley's  Case  prevents  an  alternate  remainder 
rorn  arising,  sec  Loring  v .  Eliot,  supra,  p.  S57.  —  Ed. 


I.  2.]  KINDS   OF   FUTURE    ESTATES —  REMAINDERS.  905 

thereof;  and  where  a  remainder  shall  be  limited  on  more  than  two 
successive  estates  for  life  all  the  life-estates  subsequent  to  those  of 
the  two  persons  first  entitled  thereto  shall  be  void,  and  upon  the 
death  of  those  persons  the  remainder  shall  take  effect  in  the  same 
manner  as  if  no  other  life-estates  had  been  created."  1  R.  S.  723, 
§17.'  The  prohibition  against  the  creation  of  more  than  two  suc- 
cessive life-estates  in  the  same  property  has  no  necessary  connection 
with  the  law  of  perpetuities.  There  is  no  suspense  of  the  power  of 
alienation  of  land  by  the  creation  of  successive  life-estates  therein 
unless  they  are  contingent.  Any  number  of  successive  vested  life- 
estates  may  be  created  without  violating  the  statute  of  perpetuities. 
The  prohibition  against  creating  more  than  two  successive  life- 
estates  in  the  same  property  applies  to  such  estates,  whether  vested 
or  contingent.  The  policy  of  the  prohibition,  where  applied  to 
vested  and  therefore  alienable  interests,  need  not  be  considered.  It 
is  sufficient  to  say  that  it  was  regarded  by  the  Legislature  as  not 
imposing  an  undue  restraint  upon  the  owner  of  property,  and  the 
provision  is  in  harmony  with  the  general  rule  prescribing  the  period 
during  which  the  power  of  alienation  of  land  may  be  suspended,  viz., 
two  lives  in  being  at  the  creation  of  the  estate.  The  statute,  how- 
ever, does  not  avoid  the  whole  limitation  where  more  than  two  suc- 
cessive life-estates  are  limited.  It  permits  the  first  two  to  take  effect, 
avoiding  those  only  which  are  in  excess  of  the  permitted  number. 
So  also  the  seventeenth  section  preserves  a  remainder  limited  on 
more  than  two  successive  estates  for  life.  But  we  apprehend  that 
the  section  must  be  construed  as  referring  to  vested,  and  not  to 
contingent  remainders.  It  cannot  in  reason,  or  by  its  true  construc- 
tion, be  held  to  apply  to  the  latter.  Where  the  right  of  the  remain- 
derman is  vested,  and  the  right  of  possession  only  is  postponed,  the 
statute,  in  cases  of  three  or  more  precedent  estates  for  life,  acceler- 
ates the  period  fixed  by  the  will  or  deed  for  the  vesting  of  the 
remainder  in  possession,  and  vests  it  immediately  upon  the  termina- 
tion of  the  two  estates  for  life  first  created.  The  statute  so  far 
overrides  the  precise  intention  of  the  grantor  or  testator,  as 
expressed  in  the  will  or  deed,  but  as  the  possession  in  the  remainder- 
man was  postponed,  presumably  for  the  purpose  of  allowing  an 
intermediate  life-estate  to  run,  and  that  purpose  being  defeated  by 
section  17,  the  statute,  by  accelerating  the  remainder,  gives  effect 
as  near  as  may  be  to  the  intention  of  the  creator  of  the  estate.  But 
where  the  gift  in  remainder  is  upon  a  contingency  which  has  not 
happened  at  the  time  of  the  death  of  the  second  life  tenant,  so  that 

'§33  N.  Y.  R.  P.  L.  —  Ed. 


906    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CII.  VI. 

it  cannot  then  be  known  who.  will  be  entitled  in  remainder  according 
to  the  terms  of  the  instrument  creating  the  estate,  the  statute,  we 
conceive,  can  have  no  application. 

The  construction  that  section  17  applies  only  to  vested  remainders, 
is,  moreover,  sufficiently  plain  upon  its  language.  The  remainder, 
the  section  says,  is  to  take  effect  in  the  same  manner  as  if  no  other 
life-estate  had  been  created.  Where  the  remainder  was  contingent 
when  the  life-estate  commenced,  and  remains  so  at  the  death  of  the 
tenant  of  the  second  life-estate,  it  would  not  vest,  although  no  other 
life-estate  had  been  created,  and  the  statute  gives  effect  to  remain- 
ders only  in  the  same  manner  as  if  limited  upon  two  life-estates 
instead  of  three.  It  is  plain  we  think  that  the  statute  only  executes 
the  remainder  in  possession  in  favor  of  such  ascertained  persons  as, 
except  for  the  void  life-estate,  would  under  the  terms  of  the  will  or 
deed,  be  entitled  to  the  immediate  possession.  See  Knox  v.  Jones, 
47  X.  Y.  397;   Smith  x.  Edwards,  88  Id.  104.1 


3.    Executory  Future  Estates  or  Interests." 

1  See  also  Dana  v.  Murray,  122  New  York,  604.  —  Ed. 

5"  Executory  limitations."  These  were  originally  future  estates  of  freehold 
not  created  by  livery  of  seisin.  Such  estates  were  not  possible  at  common  law 
except  in  one  or  two  localities  in  England  where  lands  were  subject  to  devise 
prior  to  the  Statute  of  Wills.  They  ordinarily  arose  either  under  conveyances 
operating  under  the  Statute  of  Uses  (27  Hen.  VIII.  Cap.  10)  or  by  virtue  of  devises 
under  the  Statute  of  Wills  (32  Hen.  VIII,  Cap.  1.)  But  even  in  such  cases 
where  a  freehold  estate  was  created  to  take  effect  as  soon  as  the  instrument 
should  become  operative  aftd  was  to  be  followed  by  a  future  estate  which  would 
have  been  a  valid  remainder  (vested  or  contingent)  had  livery  been  made,  the 
courts  construed  the  estates  on  common-law  principles.  So  also  a  future  estate 
dependent  upon  a  particular  estate  which  was  itself  to  begin  in  futuro  would  be 
converted  into  a  remainder,  if  possible,  the  moment  the  particular  estate  should 
vest  in  possession.  And  a  future  use  or  executory  devise  capable  of  being  con- 
strued as  a  remainder  could  not  afterwards  be  saved  by  adopting  a  more  liberal 
construction  in  case  as  a  remainder  it  should  fail.  See  Waddell  v.  Rattciu,  p. 
932,  infra. 

Executory  future  estates  may  now  be  created  in  one  of  the  following  ways: 
(ii!  ;y  an  instrument  operating  to  create  a  legal  estate  by  virtue  of  the  Statute  of 
Uses.  Such  future  estates  are  either  shifting  or  springing  uses.  (2)  By  a 
devise  under  the  Statute  of  Wills, — ;in  executory  devise.  (3)  Under  statutes 
which  declare  that  corporeals  as  well  as  incorporeals  shall  lie  in  grant  instead 
of  in  livery  (see  §§  16  and  17,  Gray's  Perpetuities),  or  perhaps  under  statute^ 
which  merely  abolish  feoffment  and  livery  of  seisin.  See  Wyman  v.  Brown, 
infra,  \>.  909,  (4)  Under  special  statutory  systems  regulating  the  creation  of 
future  estates,  as  in  New  York,  and  the  states  which  have  copied  from  it,  Wis- 
consin, Minnesota,  Michigan   and    others.      See    for   New    York,  §§   206,    25-54, 


I.  3.]  EXECUTORY    FUTURE    ESTATES.  907 

a.   Shi/ting  executory  future  estates,  "  conditional  limitations."* 
HATFIELD  v.  SNEDEN. 

54  New  York,  280.  —  1873. 
[Reported  herein  at  p.  641. ]3 


b.  Springing  executory  limitations .% 

KENYON  v.   SEE. 

94  New  York,  563.  —  1884. 

Accounting  of  the  executors  of  the  will  of  John  Mildeberger. 
The  will  gives  one-third  of  testator's  real  and  personal  property  to 
S.  M.  Spencer,  in  trust  to  pay  the  interest  thereoTT6~testator's 
"  grandson,  Seymour  Hobart  Spencer,  upon  the  express  condition 
that  the  said  Seymour  Hobart  Spencer  shall  renounce  the  Roman 
Catholic  priesthood,  said  payment  of  interest  to  commence  at  the 
time  of  such  renunciation,  and  upon  the  further  condition  that  the 
said  Seymour  Hobart  Spencer  shall  marry"  the  principal  of  said 
trust  fund  is  given  to  said  S.  H.  Spencer.  In  case  of  the  death  of 
S.  H.  Spencer  before  marriage,  his  share  is  given  to  S.  M.  Spencer. 
S.  H.  Spencer  executed  an  instrument  under  seal  professing  to 
assign  all  his  rights  under  the  will  to  S.  M.  Spencer  and  the  executor 
paid  to  S.  M.  $28,000,  on  account  of  his  share  and  that  of  S.  H. 
S.  M.  died  and  his  executors  now  claim  the  balance  of  the  two  shares. 
The  accounting  executor  claims  that  S.  H.'s  share  was  not  assigna- 
ble and  must  remain  in  the  hands  of  the  trustees  to  await  perform- 
ance of  the  condition. 

Andrews,  J.  —  Seymour  H.  Spencer  took  no  vested  estate  or 
interest  in  the  principal  or  income  of  the  fund  given  in  trust  to  Sel- 

N.  Y.  R.  P.  L.  In  New  York  these  future  estates  may  be  called  "  remainders  " 
if  there  is  any  sort  of  a  precedent  estate;  otherwise  they  are  simply  "future 
estates."  —  Ed. 

1  These  include  shifting  uses,  shifting  executory  devises,  and  shifting  estates 
of  any  kind  authorized  by  special  statute.  As  to  the  term  "  conditional  limita- 
tion "  see  note,  p.  551,  supra.  Alternate  remainders  and  the  like  are  to  be  care- 
fully distinguished  from  these  limitations.     See  p.  904,  supra.  —  Ed. 

2  See  also  Turner  v.  Wright,  supra,  p.  391;  Adams  v.  Ross,  supra,  p.  483;  Evans 
v.  Evans,  p.  669;  Ed-wards  v.  Bibb,  p.  671.  —  Ed. 

3  Here  no  present  estate  at  all  is  created,  but  the  fee  is  left  in  the  grantor  or 
his  heirs,  or  the  heirs  of  the  testator,  until  the  happening  of  the  future  event  on 
which  the  future  estate  is  limited  to  commence.  —  Ed. 


908   future  estates  and  interests  in  land.    [PT.  IV.  CH.  VI. 

den  M.  Spencer  by  the  eighth  clause  of  the  will  of  the  testator, 
John  Milderberger.  The  right  to  either  was  conditional.  He  was 
entitled  to  the  income  only  upon  and  from  his  renunciation  of  the 
Roman  Catholic  priesthood,  and  to  the  principal  only  upon  his  mar- 
riage. The  conditions  were  precedent,  and,  until  performance,  he 
took  no  interest,  legal  or  equitable,  in  the  fund.  The  tenth  clause 
makes  an  alternative  gift  of  the  trust  estate  to  Selden  M.  upon  his 
marriage,  in  case  of  the  death  of  Seymour  H.,  without  having  mar- 
ried. This  gift  was  conditional  also,  there  being  a  double  con- 
dition, first,  the  death  of  Seymour  H.  before  his  marriage,  and 
second,  the  marriage  of  Selden  M.  If  the  contingent  interest  of 
Selden  M.  did  not  lapse  upon  his  death  before  Seymour  H.,  or  in 
other  words,  if  it  survived  and  was  transmissible  like  a  vested 
interest,  then  the  appellant  must  fail,  as  he  has  no  interest  which 
can  be  affected  by  the  decree  of  the  surrogate.  We  think  this  con- 
tingent right  passed  on  the  death  of  Selden  M.  to  his  representa- 
tives, and  that,  on  the  death  of  Seymour  H.  before  marriage,  they  will 
be  entitled  to  the  fund.  The  survivorship  of  Selden  M.  is  no  part  of 
the  contingency  upon  which  the  gift  to  him  is  limited.  The  tes- 
tator, as  the  will  indicates,  intended  to  make  a  complete  disposition 
of  his  property.  The  alternative  disposition  was  made  to  meet  the 
contingency  that  Seymour  H.  might  not  accept  the  conditions  upon 
.which  the  gift  to  him  depended.  There  is  no  reason  to  suppose 
that  the  testator  intended  to  confine  the  benefit  of  this  provision  to 
Selden  M.  personally,  and  to  exclude  his  family  or  descendants 
when  he  made  marriage  one  of  the  conditions  of  his  taking  at  all. 
If  the  continued  existence  of  the  legatee,  in  case  of  a  contingent 
legacy,  is  part  of  the  contingency  upon  which  the  gift  is  limited, 
then  there  can  be  no  doubt.  But  in  this  case  the  personal  enjoy- 
ment of  the  legacy  by  Selden  M.  was  not  made  essential  to  its  taking 
effect.  The  general  rule  is  that  contingent  interests  are  assignable, 
devisable  and  descendible.  "  In  general,"  says  Fearne,  "  it  seems 
that  contingent  interests  pass  to  the  real  and  personal  representa- 
tives, according  to  the  nature  of  such  interests,  as  well  as  vested 
interests,  so  as  to  entitle  such  personal  representatives  to  them 
when  the  contingencies  happen."  Fearne  on  Cont.  Rem.  364. 
The  rule  stated  by  the  learned  author  is  supported  by  numerous 
authorities.  Pinbury  v.  Elkin,  1  P.  Wms.  563;  King  v.  Withers, 
Temp.  Talb.  117;  Chancy  v.  Graydon,  1  Atk.  616;  Barnes  v. 
Allen,  1  Bro.  Ch.  Rep.  181;   Winslow  v.  Goodwin,  7  Mete.  363. 

Here  one  of  the  conditions  upon  which  Selden  M.  was  to  take, 
viz.,  marriage,  was  performed  before  his  death.  The  other  con- 
dition, viz.,  the  death  of  Seymour  H.  before  marriage,  has  not  hap- 


I.  3.]  EXECUTORY    FUTURE    ESTATES.  909 

pened.  It  may  never  happen,  as  Seymour  H.  may  marry,  how- 
ever improbable  this  may  be.  If  he  does  marry,  then  he  will  be 
entitled  to  the  third  part  of  the  estate  of  the  testator,  under  the 
will,  unless  his  attempted  transfer  to  Selden  M.  operates  as  an 
estoppel.  In  either  event,  whether  Seymour  H.  takes,  or  the  repre- 
sentatives of  Selden  M.,  the  appellant  has  no  interest.  One  of  the 
two  things  will  happen,  and  which  is  a  matter  with  which  he  has  no 
concern.  No  question  is  made  as  to  the  validity  of  the  trust  in  the 
will  of  John  Milderberger. 

We  think  the  case  was  properly  disposed  of  by  the  surrogate,  and 
that  the  judgment  of  the  General  Term  should  be  affirmed. 

Judgment  affirmed.1 


Walton,  J.,  in  WYMAN  v.  BROWN. 

50  Maine,  139.  —  1863. 

Another  question  raised  in  this  case  is,  whether  the  deed  from 
Mrs.  Brown  to  Oliver  S.  Nay  was  valid.  The  objection  to  it  is,  that 
it  purports  to  convey  a  freehold  estate  to  commence  in  futuro;  and 
such  is  its  effect,  for  by  its  terms  Mrs.  Brown  was  "  to  have  quiet 
possession,  and  the  entire  income  of  the  premises  until  her  decease." 

Deeds  in  which  grantors  have  reserved  to  themselves  estates  for 
life  are  believed  to  be  very  common  in  this  State;  and  whether  or 
not  such  deeds  are  valid  is  certainly  a  very  important  question,  and 
ought  to  be  authoritatively  decided. 

It  was  a  principle  of  the  old  feudal  law  of  England  that  there 
should  always  be  a  known  owner  of  every  freehold  estate,  and  that 
the  freehold  should  never,  if  possible,  be  in  abeyance.  This  rule 
was  established  for  two  reasons:  1.  That  the  superior  lord  might 
know  on  whom  to  call  for  the  military  services  due  from  every  free- 
holder, as  otherwise  the  defense  of  the  realm  would  be  weakened. 
2.  That  every  stranger  who  claimed  a  right  to  any  lands  might  know 
against  whom  to  bring  his  suit  for  the  recovery  of  them;  as  no  real 
action  could  be  brought  against  any  one  but  the  actual  tenant  of  the 
freehold.  Consequently,  at  common  law,  a  freehold  to  commence 
in  futuro  could  not  be  conveyed,  because  in  that  case  the  freehold 
would  be  in  abeyance  from  the  execution  of  the  conveyance  till  the 
future  estate  of  the  grantee  should  vest.  And  it  is  laid  down  in 
unqualified  terms  in  several  cases  in  Massachusetts,  and  in  one  in 
this  State,  that  an  estate  of  freehold  cannot  be  conveyed  to  com- 

1  See  also  Leonard  v.  Burr,  supra,  p.  521. 


9IO    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

mence  infuturo  by  a  deed  of  bargain  and  sale,  which  owes  its  validity 
to  the  statute  of  uses,  and  not  to  the  common  law. 

But  the  doctrine  that  freehold  estates  to  commence  infuturo  can- 
not be  conveyed  by  deeds  of  bargain  and  sale,  since  the  passage  of 
the  statute  of  27  Henry  8,  c.  10,  commonly  called  the  statute  of 
uses,  is  clearly  erroneous.  It  is  clear  that,  at  common  law,  such 
conveyances  could  not  be  made;  and  it  is  equally  clear  that,  by 
virtue  of  the  statute  of  uses,  such  conveyances  may  be  made.  Prior 
to  the  reign  of  Henry  8,  real  estate  could  be  so  held  that  one  person 
would  have  the  legal  title,  and  another  the  right  to  the  use  and 
income.  To  obviate  many  supposed  inconveniences  which  had 
grown  out  of  this  practice  of  separating  the  legal  title  from  the  use, 
the  statute  of  uses  was  passed,  by  which  it  was  enacted  that  the 
estates  of  the  persons  so  seised  to  uses  should  be  deemed  to  be  in 
them  that  had  the  use,  in  such  quality,  manner,  form,  and  condition, 
as  they  had  before  in  the  use.  It  will  be  noticed  that  the  effect  of 
this  statute  was  to  annex  the  legal  title  to  the  use,  so  that  they  could 
not  be  separated.  Mr.  Cruise  says,  that  when  this  statute  first 
became  a  subject  of  discussion  in  the  courts  of  law,  it  was  held  by 
the  judges  that  no  uses  should  be  executed  that  were  limited  against 
the  rules  of  the  common  law;  but  that  this  doctine  was  not  and  could 
not  be  adhered  to,  for  the  statute  enacts  that  the  legal  estate  or  seisin 
shall  be  in  them  that  have  the  use,  in  such  quality,  manner,  form, 
and  condition,  as  they  before  had  in  the  use;  that  chancery  having 
permitted  uses  to  commence  infuturo,  and  to  change  from  one  per- 
son to  another,  by  mat^r  ex  post  facto,  the  courts  of  law  were  obliged 
to  admit  of  limitatio  ^  of  this  kind.  The  statute  did  not  attempt  to 
limit  or  control  tr  doctrine  of  uses;  it  simply  declared  that  where 
the  use  was,  the.  .  the  legal  estate  should  be  also.  The  result  was 
that  it  opened  several  new  modes  of  conveying  legal  estates  wholly 
unknown  to  the  common  law;  for  whatever  would  convey  the  use 
and  income  of  real  estate  before  its  passage,  would,  by  virtue  of  the 
statute,  convey  the  legal  estate  afterwards.  It  will  thus  be  seen  that 
conveyances  through  the  medium  of  the  statute  of  uses  are  effected 
in  this  way:  —  The  owner  of  an  estate  in  lands,  for  a  consideration 
either  good  or  valuable,  agrees  that  another  shall  have  the  use  and 
income  of  it,  and  the  statute  steps  in  and  annexes  the  legal  title  to 
the  use,  and  thus  the  cestui  que  use  becomes  seised  of  the  legal  estate 
in  the  same  manner  as  before  the  statute  he  would  have  been 
seised  of  the  use.  The  argument,  presented  in  a  syllogistic  form, 
is  this:  Since  the  statute  of  uses,  freeholds  can  be  conveyed  in  any 
manner  that  uses  were  conveyed  before  its  passage.  Before  its  pas- 
sage, uses   were  conveyed   to  commence  in  futuro;  therefore,  free- 


I.  3.]  EXECUTORY    FUTURE   ESTATES.  9II 

holds  may  be  conveyed  to  commence  in  future?  since  its  passage.  It 
must  be  remembered,  however,  that  neither  legal  estates  nor  uses 
can  be  so  limited  as  to  create  perpetuities.  If  future  estates  are  so 
limited  as  to  take  effect  in  the  lifetime  of  one  or  more  persons  living, 
and  a  little  more  than  than  twenty-one  years  after,  the  rule  against 
perpetuities  will  not  be  violated.  We  will  refer  to  a  few  leading 
authors: 

Mr.  White,  a  very  learned  English  writer,  in  one  of  his  additions 
to  the  text  of  Mr.  Cruise,  says:  "  By  executory  devise  and  convey- 
ances operating  by  virtue  of  the  statute  of  uses,  freehold  estates  may 
be    limited    to    commence  in  futuro."     1   Greenleaf's    Cruise,   title 

h  §36. 

Mr.  Chitty,  after  stating  that  by  a  common  law  conveyance,  a 
freehold  to  commence  in  futuro  could  not  be  conveyed,  continues. 
"  But  deeds  operating  under  the  statute  of  uses,  such  as  bargain  and 
sale,  covenant  to  stand  seised,  or  a  conveyance  to  uses,  or  even  a 
devise,  may  give  an  estate  of  freehold  to  commence  in  futuro." 
1  Chitty's  General  Practice,  306;  2  Bl.  Com.  144,  note  6. 

Mr.  Sugden  says:  "  A  bargain  and  sale  to  the  use  of  D.,  after 
the  death  of  S.,  is  good."     Gilbert  on  Uses  (Sug.  edition),  163. 

Mr.  Cornish:  "  By  a  bargain  and  sale,  or  covenant  to  stand  seised, 
a  freehold  may  be  created  in  futuro. "     Cornish  on  Uses,  44. 

Chancellor  Kent:  "  A  person  may  covenant  to  stand  seised,  or 
bargain  and  sell,  to  the  use  of  another  at  a  future  day."  4  Kent's 
Com.  298. 

Mr.  Archibold:  "  Deeds  acting  under  the  statute  of  uses,  such 
as  bargain  and  sale,  covenant  to  stand  seised,  or  a  conveyance  to 
uses,  or  even  a  devise,  may  give  an  estate  of  freehold  to  commence 
in  futuro."     Note  to  2  Bl.  Com.  166. 

In  a  note  to  the  5th  American  edition  of  Smith's  Leading  Cases, 
vol.  2,  p.  451,  after  noticing  the  Massachusetts  cases,  in  which  it  is 
held  that  a  freehold  to  commence  in  futuro  cannot  be  created  by  a 
deed  of  bargain  and  sale,  the  learned  editors  say:  "  It  is  undoubtedly 
true  that  such  limitations  are  bad  at  common  law;  but  it  seems 
equally  well  settled  that  they  are  good  in  deeds  operating  under  the 
statute  of  uses,  whether  the  use  be  raised  on  a  pecuniary  considera- 
tion or  on  blood  or  marriage.  The  point  is  so  held  in  England,  and 
has  been  repeatedly  and  expressly  decided  in  New  York,  and  several 
of  the  other  States  of  this  country.  The  attributes  of  a  use  are  the 
same,  whatever  may  be  the  consideration  in  which  it  is  founded; 
and,  if  uses  commencing  in  futuro  were  without  the  operation  of  the 
statute,  when  raised  by  a  bargain  and  sale,  they  would  be  equally 
so  when  originating  in  a  covenant  to  stand  seised." 


912     FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [l'T.  IV.  CH.  VI. 

In  Rogers  v.  Eagle  Insurance  Co.,  9  Wend.  611,  the  question  under- 
went a  most  thorough  examination,  and  the  conclusion  was,  that  a 
freehold  to  commence  in  futuro  could  be  conveyed  by  a  deed  of 
bargain  and  sale,  operating  under  the  statute  of  uses;  and  the  court 
expressed  surprise  that  any  one  should  have  ever  supposed  that  such 
was  not  the  law. 

In  Bell  v.  Scammon,  15  N.  H.  381,  the  same  question  was  raised 
and  the  court  held  that  "  a  freehold  in  futuro  could  be  conveyed  either 
by  deed  of  bargain  and  sale,  or  by  a  covenant  to  stand  seised." 

Mr.  Washburn,  in  his  late  very  able  work  on  Real  Property,  vol. 
2,  p.  617,  §  16,  says  that  the  reasoning  of  Chancellor  Walworth,  in 
Rogers  v.  Eagle  Insurance  Co.,  9  Wend.  611,  in  which  he  maintains 
that  an  estate  of  freehold,  to  commence  in  futuro,  can  be  conveyed 
by  a  deed  of  bargain  and  sale,  and  the  authorities  upon  which  he 
rests  would  seem  to  leave  little  doubt  in  the  matter,  beyond  what 
arises  from  the  circumstance  that  other  courts  have  taken  a  different 
view  of  the  law. 

It  is  true,  that  in  Massachusetts  and  this  State,  when  determining 
that  the  deeds  then  under  consideration  were  valid  upon  other 
grounds,  judges  have  expressed  the  opinion  that  a  freehold  to  com- 
mence in  futuro  could  not  be  conveyed  by  a  deed  of  bargain  and 
sale;  but  these  opinions  are  mere  obiter  dicta,  for  they  have  never 
yet  had  the  effect  of  defeating  a  deed.  The  idea  seems  to  have 
originated  in  an  unauthorized  statement,  probably  accidental,  to  be 
found  in  Pray  v.  Pierce,  7  Mass.  381.  Having  under  discussion  the 
rule  that  deeds  should  be  so  construed  as  to  give  effect  to  the  inten- 
tion of  the  parties,  and  not  to  defeat  it,  the  case  of  JVallis  v.  JVallis, 
4  Mass.  135,  was  referred  to  by  way  of  illustration,  and  the  reporter 
makes  the  court  say  that  the  deed  in  the  latter  case  was  held  to  be 
a  covenant  to  stand  seised,  "  because,  as  a  bargain  and  sale,  it  would 
have  been  a  conveyance  of  a  freehold  in  futuro,  and  therefore  void." 

By  turning  to  that  case,  Wallis  v.  JVallis,  it  will  be  seen  that  such 
a  statement  in  unauthorized.  The  court  remarked  that,  by  a  common 
law  conveyance,  a  freehold  could  not  be  conveyed  to  commence  in 
futuro,  which  was  unquestioanbly  true;  but  the  court  did  not  say 
that  such  a  conveyance  could  not  be  made  by  deed  of  bargain  and 
sale,  which  owes  its  validity  to  the  statute  of  uses  and  not  to  the 
common  law.  Why  the  deed  in  JVallis  v.  Wallis,  was  not  sustained 
as  a  bargain  and  sale,  instead  of  covenant  to  stand  seised,  does  not 
appear.  The  case  was  submitted  without  argument,  and,  as  the  deed 
could  readily  be  sustained  as  a  covenant  to  stand  seised,  it  may  not 
have  occurred  to  the  court  that  it  could  just  as  well  be  sustained  as 
a  bargain   and    sale.      ( )n   careful   examination,  it    will   be   seen   that 


I.  3-]  EXECUTORY   FUTURE    ESTATES.  913 

these  cases,  Wallis  v.  Wallis,  and  Pray  v.  Pierce,  are  not  authorities 
for  the  doctrine  they  are  so  often  cited  in  support  of. 

In  Welch  v.  Foster,  12  Mass.  93,  the  deed,  for  a  valuable  con- 
sideration, to  be  paid  whenever  the  deed  should  take  effect,  and  not 
otherwise,  purported  to  convey  a  certain  part  of  a  mill,  with  the 
land,  etc.,  "  provided  that  the  said  deed  should  not  take  effect  or  be 
made  use  of,  until  the  said  mill-pond  should  cease  to  be  employed 
for  the  purpose  of  carrying  any  two  mill-wheels."  It  was  held  that 
nothing  passed  by  the  deed,  not  because  it  was  to  take  effect  only 
upon  the  happening  of  a  future  event,  but  because  the  event,  if  it 
should  ever  happen,  might  be  delayed  much  beyond  the  utmost 
period  allowed  for  the  vesting  of  estates  on  a  future  contingency. 
The  event,  it  was  held,  must,  in  its  original  limitation,  be  such  that 
it  must  either  take  place,  or  become  impossible  to  take  place,  within 
the  space  of  one  or  more  lives,  in  being,  and  a  little  more  than 
twenty-one  years  afterwards,  to  prevent  the  creating  of  a  perpetuitv, 
or  an  unalienable  estate.  Such  is  undoubtedly  the  law  Besides, 
no  consideration  was  ever  paid  for  the  deed,  and  the  grantor  after- 
wards conveyed  to  another.  Under  these  circumstances  the  court 
very  properly  held  the  deed  void.  But  the  distinction  made  by 
Judge  Jackson,  in  that  case,  between  covenants  to  stand  seised,  and 
deeds  of  bargain  and  sale,  is  mere  dictum,  and  has  neither  reason 
nor  authority  to  rest  upon. 

Speaking  of  the  qualities  of  a  bargain  and  sale,  Judge  Jackson 
says:  "  One  of  these  qualities  is,  that  it  must  be  to  the  use  of  the 
bargainee,  and  that  another  use  cannot  be  limited  on  that  use;  from 
which  it  follows  that  a  freehold  to  commence  infuturo  cannot  be 
conveyed  in  this  mode;  as  that  would  be  to  make  the  bargainee  hold 
to  the  use  of  another  until  the  future  freehold  should  vest."  Hold 
what?  Upon  the  execution  of  a  deed  in  which  the  grantor  reserves 
to  himself  an  estate  for  life,  and  conveys  the  residue,  the  grantee 
obtains  a  present  vested  right  to  a  future  enjoyment  of  the  prop- 
erty; but,  until  the  future  freehold  vests,  the  use,  the  seisin,  and  the 
right  of  possession,  remain  with  the  grantor,  and  there  is  no  con- 
ceivable thing  that  the  bargainee  will  be  required  to  "  hold  to  the 
use  of  another." 

Judge  Jackson  seems  to  have  supposed  that  when  such  a  deed  is 
executed  the  legal  estate  or  seisin  passes  immediately  to  the  grantee, 
and  that,  until  his  own  future  freehold  vests,  he  holds  this  legal 
estate,  or  ideal  seisin,  to  the  use  of  the  grantor.  But  such  a  theory 
is  wrong,  and  contrary  to  every  authority  we  have  been  able  to  find. 
In  fact,  under  the  statute  of  uses,  such  a  theory,  which  separates  the 
legal  estate  from  the  use,  cannot  be  correct;  for,  by  the  very  terms 

LAW  OF  PROP.   IN  LAND  —  45 


914    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

of  the  statute,  the  lawful  seisin,  estate,  and  possession,  shall  be 
deemed  and  adjudged  to  be  in  him  that  hath  the  use,  to  all  intents, 
constructions,  and  purposes,  in  law;  and  is  made  applicable  to  "  any- 
such  use  in  fee  simple,  fee  tail,  for  life,  or  for  years."  '  The  seisin 
remains  in  the  person  creating  the  future  use  till  the  springing  use 
arises,  and  is  then  executed  to  this  use  by  the  statute."  2  Wash- 
burn on  Real  Prop.  282.  "  If  raised  by  a  covenant  to  stand  seised, 
or  bargain  and  sale,  the  estate  remains  in  the  covenantor  or 
bargainor  until  the  springing  use  arises."  Gilbert  on  Uses,  Sug- 
den's  note,  163.  "  A  person  may  covenant  to  stand  seised,  or 
bargain  and  sell,  to  the  use  of  another  at  a  future  day."  In 
such  a  case,  "  the  use  is  served  out  of  the  grantor's  seisin." 
4  Kent,  298.  "  Here  is  a  conveyance  to  the  bargainee  to  take  effect 
at  the  decease  of  the  bargainor,  which  creates  a  resulting  use  to  the 
latter  during  life,  with  a  vested  use  in  remainder  to  the  bargainee  in 
fee,  both  uses  being  served,  in  succession,  out  of  the  seisin  of  the 
bargainor."     Jackson  v.  Dunsbah,  1  Johns.  Cases,  96. 

The  rule  that  a  bargain  and  sale  must  be  to  the  use  of  the  bar- 
gainee and  not  to  the  use  of  another,  applies  to  only  so  much  of  the 
estate  as  is  bargained  for,  and  not  to  the  residue,  which  is  not  bar- 
gained for,  and  not  paid  for;  and  the  rule  is  not  violated  and  there 
is  nothing  inequitable  or  repugnant  to  the  grant,  in  requiring  him  to 
wait  for  the  enjoyment  of  the  property  till  such  time  as,  by  the 
express  terms  of  the  deed  under  which  he  claims,  he  is  entitled  to  it. 

It  will  be  noticed  that  Judge  Jackson  assumes  the  existence  of  a 
rule,  that  one  use  cannot  be  limited  upon  another,  and  that  it  would 
be  a  violation  of  this  rule  to  give  effect  to  a  deed  of  bargain  and 
sale  of  a  freehold,  to  commence  in  futuro.  Such  a  rule  does  exist 
in  England.  Mr.  Watkins,  in  his  introduction  to  his  very  able  work 
on  conveyancing,  says,  that  "  about  the  time  of  passing  the  statute 
of  uses,  some  wise  man,  in  the  plentitude  of  legal  learning,  declared 
there  could  not  be  an  use  upon  an  use;  and  that  this  very  wise 
declaration,  which  must  have  surprised  every  one  who  was  not  suffi- 
ciently learned  to  have  lost  his  common  sense,  was  adopted;  "  and 
Lord  Hardwicke,  in  Hopkins  v.  Hopkins,  1  Atk.  591,  says,  that  by 
this  means,  a  statute  made  upon  great  consideration,  introduced  in 
a  solemn  and  pompous  manner,  has  had  no  other  effect  than  to  add, 
at  most,  three  words  to  a  conveyance.  Mr.  Williams,  in  his  work 
on  Real  Property,  page  124,  says  this  rule  has  much  of  the  technical 
tility  of  the  scholastic  logic  which  was  then  prevalent.  Lord 
Mansfield  calls  it"  absurd  narrowness."  2  Doug.  774.  Blackstone 
calls  it  a  "  technical  scruple;  "  and  Mr.  Sugden,  in  a  note  to  Gilbert 
Oil  Uses,  page  348,  says  it  never  ought  to  have  been  sanctioned  at 


I.  3.]  EXECUTORY   FUTURE   ESTATES.  915 

all.  In  Thacher  v.  Omans,  decided  in  1792,  reported  in  3d  Pick.  521, 
on  page  528,  the  court  refer  to  the  censures  of  Blackstone  and  Lord 
Mansfield,  and  express  strong  doubts  as  to  the  propriety  of  admitting 
it  in  this  country;  and  Mr.  Greenleaf  says  it  may  well  be  doubted 
whether  the  rule  has  been  adopted  in  this  country.  Note  to  Greenl. 
Cruise,  title  12,  c.  1,  §  4.  With  such  a  weight  of  authority  against 
it,  if  the  effect  of  the  rule  would  be  to  defeat  such  conveyances  as 
we  are  now  considering,  we  think  we  might  be  warranted  in  rejecting 
it  altogether.  But  such  is  not  its  effect.  When  a  freehold  is  con- 
veyed, to  commence  at  a  future  day,  till  such  future  day  arrives  the 
use  results  to  the  grantor,  and  then  passes  to  the  grantee;  and  the 
uses  are  not  limited  one  upon  the  other,  but  one  after  the  other; 
and,  in  this  way,  a  fee  simple  may  be  carved  into  an  indefinite  num- 
ber of  less  estates.  "  So  long  as  regular  order  is  laid  down,  in 
which  the  possession  of  the  lands  may  devolve,  it  matters  not  how 
many  kinds  of  estates  are  granted,  or  on  how  many  persons  the  same 
estate  is  bestowed.  Thus,  a  grant  may  be  made  at  once  to  fifty 
different  people,  separately,  for  their  lives."  Williams  on  Real  Prop. 
189-90.  "  Shifting  or  substituted  uses  do  not  fall  within  this 
technical  rule  of  law,  for  they  are  merely  alternate  uses."  4  Kent's 
Com.  301. 

The  st"  ~ment  that  a  freehold  to  commence  in  futuro  cannot  be 
conveyed  by  deed  of  bargain  and  sale,  which  seems  first  to  have 
been  made  in  Pray  v.  Pierce,  as  before  stated,  has  been  several 
times  repeated  in  Massachusetts,  Walsh  v.  Foster,  12  Mass.  93; 
Parker  v.  Nichols,  7  Pick.  115;  Gale  v.  Coburn,  18  Pick.  397;  Brewer 
v.  Hardy,  22  Pick.  376;  and  once  at  least  in  this  State,  Marden  v. 
Chase,  32  Maine,  329;  but  the  only  case  we  have  found  in  which  an 
attempt  has  been  made  to  give  a  reason  for  the  supposed  rule  is  that 
of  Welsh  v.  Foster;  and  a  careful  examination  has  satisfied  us  that 
the  argument  in  that  case  is  unsound,  and  not  supported  by  an 
adjudged  case  that  has  the  weight  of  authority.  It  is  admitted  in  all 
these  cases  that  if  it  can  be  shown  that  the  parties  to  such  deeds 
are  near  relatives,  effect  may  be  given  to  them  as  covenants  to  stand 
seised,  made,  not  as  they  purport  to  be  for  a  pecuniary  considera- 
tion, but  in  consideration  of  love  and  affection.  And  there  is  no 
doubt  that  if  two  deeds  should  be  executed  instead  of  one,  that  is,  if 
the  grantor  should  first  convey  the  whole  estate,  and  then  take  back 
a  life  lease,  the  transaction  would  be  held  legal. 

The  doctrine,  therefore,  that  a  freehold  to  commence  in  futuro 
cannot  be  conveyed  by  a  deed  of  bargain  and  sale,  amounts  to  no 
more  than  this:  That  if  the  owner  of  a  fee  simple  estate  proposes 
to  reserve  to  himself  a  life  estate,  and  to  sell  the  residue,  if  he  deals 


gi6    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

with  a  relative,  such  an  arrangement  can  be  carried  into  effect  by 
making  one  deed;  but  if  he  deals  with  a  stranger  it  will  be  necessary 
to  make  two.  It  is  certainly  very  strange  that  a  doctrine  so  techni- 
cal, so  easily  evaded,  and  so  utterly  destitute  of  merit,  should  have 
gained  the  currency  it  has. 

We  entertain  no  doubt  that,  by  deeds  of  bargain  and  sale,  deriving 
their  validity  from  the  statute  of  uses,  freeholds  may  be  conveyed  to 
commence  infuturo.  It  will  be  seen  that,  the  law  is  so  held  in  Eng- 
land, and  by  an  overwhelming  weight  of  authority  in  this  country. 
In  fact  that  such  was  the  law  seems  never  to  have  been  doubted 
except  in  Massachusetts  and  in  this  State;  and  we  think  the  error 
originated  in  the  unauthorized  remark  found  in  Pray  v.  Pierce,  and 
has  been  repeated  from  time  to  time  without  receiving  that  con- 
sideration which  its  importance  demanded. 

We  are  also  of  opinion  that  effect  may  be  given  to  such  deeds  by 
force  of  our  own  statutes,  independently  of  the  statute  of  uses.  Our 
deeds  are  not  framed  to  convey  a  use  merely,  relying  upon  the 
statute  to  annex  the  legal  title  to  the  use.  They  purport  to  convey 
the  land  itself,  and  being  duly  acknowledged  and  recorded,  as  our 
statutes  require,  operate  more  like  feoffments  than  like  conveyances 
under  the  statute  of  uses.  In  Thacher  v.  Omans,  3  Pick,  on  p.  525, 
Chief  Justice  Dana,  speaking  of  our  statute  of  conveyances,  first 
enacted  in  1697,  re-enacted  in  the  Revised  Laws  of  1784,  incor- 
porated into  the  statutes  of  this  State  in  182 1,  and  still  in  force, 
says:"  This  statute  was  evidently  made  to  introduce  a  new  mode  of 
creating  or  transferring  freehold  estates  in  corporeal  heredita- 
ments; namely,  by  deed,  signed,  sealed,  and  acknowledged,  and 
recorded,  as  the  statute  mentions;  it  does  not  prescribe  any  particular 
kind  of  deeds  or  conveyances,  but  is  general,  and  extends  to  all 
kinds  of  conveyances."  On  p.  532  he  further  says:  "  It  seems 
evident  to  me  that  a  deed  executed,  acknowledged  and  recorded  as 
our  statute  requires,  cannot  be  considered  as  a  bargain  and  sale, 
because  the  legal  estate  is  thereby  passed  without  the  operation 
of  the  statute  of  uses,  i;i  as  ample  a  manner  as  by  a  feoffment 
at  common  law,  accompanied  with  the  ancient  ceremony  of 
livery  of  seisin."  Such  also  were  the  opinions  of  Chancellor  Kent 
and  Prof.  Greenleaf,  .|  Kent,  \6i\  Greenleaf's  Cruise,  title  12,  c.  1, 
§  j.  note;  title  32,  c.  4,  £  1,  note.  Mr.  Greenleaf,  in  the  note  first 
;.  says  that  in  most  of  the  States,  including  Maine,  "deeds  of 
ince  derive  their  effect,  not  from  the  statute  of  uses,  but 
from  their  own  statutes  of  conveyances;  operating  nearly  like  a 
nent,  with  livery  of  seisin,  to  convey  the  land,  and  not  merely 
to  raise  a  use  to  be  afterwards  executed  by  the  statute  of  uses." 


II.   i.]  SPECIAL    RULES   TO    BE    OBSERVED.  917 

Mr.  Oliver  in  his  work  on  conveyancing,  ed.  of  1S53,  p.  281,  speak- 
ing of  our  common  warranty  deed,  says:  "  This  deed  derives  its 
operation  from  statute  and  has  therefore  some  properties  peculiar  to 
itself.  .  .  .  The  transfer  is  not  effected  by  the  execution  of  a 
use,  as  in  a  bargain  and  sale,  but  the  land  itself  is  conveyed,  as  in  a 
feoffment,  except  the  livery  of  seisin  is  dispensed  with,  upon  comply- 
ing with  the  requisitions  of  the  statute,  acknowledging  and  recording, 
substituted  instead  of  it."  We  think  these  views  are  sound  and  if 
any  of  the  technical  rules  which  have  grown  up  under  the  statute  of 
uses  stood  in  the  way  of  giving  effect  to  deeds  executed  in  accord- 
ance with  the  provisions  of  our  statute,  simply  because  they  purport 
to  convey  freeholds  to  commence  at  a  future  day,  we  think  effect 
might  be  given  to  them  independently  of  the  statute  of  uses.  But 
in  our  judgment  no  such  rules  do  stand  in  the  way  of  giving  effect 
to  such  deeds.  They  may  be  upheld  either  as  bargains  and  sales 
under  the  statute  of  uses  or  as  conveyances  deriving  their  validity 
from  our  own  statutes. 

Having  come  to  the  conclusion  that  the  demandant  is  entitled  to 
recover  upon  another  ground,  it  was  not  absolutely  necessary  to 
consider  the  validity  of  the  deed  from  Mrs.  Brown  to  Oliver  S.  Nay, 
which  purports  to  convey  a  freehold  to  commence  in  future  But, 
as  the  question  involved  is  an  important  one,  and  was  ably  argued 
by  the  counsel  in  the  case;  and,  as  the  court  has  already  decided 
one  case  within  the  past  year  (Hunter  v.  Hunter},  in  the  county  of 
Sagadahoc,  in  accordance  with  the  views  here  expressed,  but  with- 
out any  written  opinion,  and  as  several  other  suits  involving  the 
same  question,  are  still  pending  before  the  court,  we  deemed  it  best 
to  make  known  our  decision  of  the  question,  and  to  state  our  reasons 
for  the  decision,  in  connection  with  this  case. 


II.  Special  rules  to  be  observed  in  creating  future  estates  subject  to 
a  condition  precedent.1 

1.  A  Common-law  Contingent  Remainder  Must  be  so  Created 
that  it  may  by  possibility  vest  in  interest  during, 
or  £0  /^r^a^r/  with  the  termination  of,  the  particular 
Estate.1  Furthermore,  It  Cannot  be  Made  to  Depend 
on  an  Estate  for   Years. 

1  The  condition  precedent  referred  to  is  one  which  either  may  not  happen  at 
all,  or  may  not  happen  before  some  other  future  event  expressly  connected 
with  it  by  the  terms  of  the  deed  or  will..     See  note  p.  869,  supra  — .  Ed. 

1  See  definition  supra.  The  remainder  will  be  valid  in  its  creation  if  it  obeys 
this  rule  though  it  may  afterwards  fail  because  the  particular  estate  ends  before 


91 8    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

STEWART  v.  NEELY. 

139  Pennsylvania,  309.  —  1890. 

Per  Curiam.  —  The  authorities  cited  on  behalf  of  the  appellants 
were  not  necessary  to  sustain  the  familiar  rule  of  the  common  law, 
that  a  contingent  remainder  must  have  an  estate  of  freehold  to  sup- 
port it.  The  application  of  this  rule  to  the  case  in  hand  is  unique. 
It  may  be  concisely  stated  thus:  The  tenant  for  life  purchases,  and 
has  conveyed  to  her  by  deed,  the  interest  of  the  contingent 
remainderman  —  the  one  furthest  removed  from  the  succession. 
The  life-tenant  then  claims  that  her  life-estate  is  merged  into  the 
remainder,  that  intermediate  contingent  remainders  are  thereby 
destroyed,  and  that  by  reason  thereof  the  life-estate  has  been 
enlarged  into  a  fee.  The  idea  of  a  life-estate  being  merged  into  a 
contingent  remainder  is  a  novel  proposition.  Aside  from  this,  a 
contingent  remainder  can  only  be  conveyed  by  a  devise;  a  deed 
purporting  to  convey  it  operates  only  as  an  estoppel,  unless  the  con- 
veyance is  after  the  contingency  happens.  4  Kent  Com.  260; 
William,  R.  P.  215;  1  Washb.  R.  P.  264.  We  think  judgment  was 
properly  entered  for  the  defendant  on  the  case  stated. 

Affirmed. 


GOODRIGHT  v.  CORNISH. 

1  Salkeld  (Eng.),  226.  —  1791. 

In  ejectment  a  special  verdict  was  found,  viz.,  Knowling  had  issue 
two  sons,  John  and  Richard,  and  devised  lands  to  John  for  50  years, 
if  he  should  so  long  live,  and  as  for  my  inheritance  after  the  said 
term,  I  devise  the  same  to  the  heirs  male  of  the  body  of  John,  and 
for  default  of  such  issue,  then  to  Richard.  The  court  resolved,  1st. 
That  John  had  not  an  estate  tail  by  implication  upon  the  words  with- 
out issue,  because  the  devisor  had  given  him  an  estate  for  years  by 
express    words,    and   the   court   cannot   make    such    a  construction 

it  is  ready  to  vest.  There  seems  also  to  be  one  specific  rule  limiting  contingent 
remainders,  viz:  "An  estate  cannot  be  given  to  an  unborn  person  for  life  fol- 
lowed by  an  estate  to  any  child  of  such  unborn  person."  The  latter  will  be  a 
void  limitation.  It  is  thought  by  some  that  the  "rule  against  perpetuities'* 
applies  to  common-law  contingent  remainders,  but  this  is  more  than  doubtful. 
See  Gray  (who  favors  the  doctrine)  Rule  against  Perpetuities,  §£  284,  298.  In 
those  States  where  remainders  are  cut  loose  from  their  dependence  on  the  pre- 
cedent estate  there  is  no  doubt  that  the  rule  against  perpetuities  must  be 
extended  to  them;  they  would  otherwise  be  under  no  limitation  against  remote- 
ness. —  Ed. 


II.   I.]  SPECIAL   RULES   TO   BY   OBSERVED.  919 

against  express  words,  when  thereby  they  would  also  drown  the 
estate  for  years,  and  make  an  estate  of  inheritance.  2d.  The  court 
held  this  devise  to  the  heirs  male  of  the  body  of  John,  to  be  void  in 
its  creation.  For,  for  want  of  an  estate  of  freehold  to  support  it,  it 
was  void  as  a  remainder;  and  they  seemed  not  to  think  it  an  execu- 
tory devise,  because  it  was  limited  as  a  remainder,  and  because  it  is 
limited  per  verba  de prase iiti.  If  one  devise  his  estate  to  the  heir  of 
J.  S.,  and  J.  S.  is  living,  the  devise  shall  not  be  construed  an  execu- 
tory devise,  and  such  a  devise  is  therefore  void;  but  if  it  were  to 
the  heir  of  J.  S.,  after  the  death  of  J.  S.,  that  is  good,  as  an  execu- 
tory devise.  So  note  the  diversity  inter  verba  de  prcesenti  and  verba  de 
futuro.  3d.  The  court  held  the  limitation  to  the  heirs  male  of  John 
was  become  void  by  the  event,  whatever  it  was  in  its  creation,  because 
John  is  now  dead  without  issue.  4th.  The  court  held,  that  if  the 
remainder  to  the  heirs  male  of  John  was  void  in  point  of  limitation, 
then  the  next  remainder  limited  to  Richard  took  effect  presently. 
4  Mod.  255,  s.  c. 


The  Chancellor  in  HAWLEY  v.  JAMES. 

— — ' 
5  Paige's  Chancery  (N.  Y.),  318.  —  1835. 

The  20th  section  of  the  title  of  the  Revised  Statutes,  so  often 
referred  to,  prohibits  the  creation  of  a  contingent  remainder  upon  a 
term  of  years,  unless  the  nature  of  the  contingency  upon  which  it  is 
limited  is  such  that  the  remainder  must  vest  in  interest,  during  the 
continuance  of  not  more  than  two  lives  in  being  at  the  creation  of 
the  remainder,  or  at  the  termination  of  such  lives.  1  R.  S.  724. ' 
But  this  provision  of  the  Revised  Statutes  cannot  be  construed  to 
mean  that  no  contingent  remainder  shall  be  limited  on  a  term  of 
years,  unless  it  is  so  limited  as  to  render  it  certain  that  the  remainder 
must,  in  any  event,  become  vested  in  interest.  Upon  such  a  con- 
struction of  the  20th  section  of  the  statute,  the  next  section  is  not 
only  useless  but  absurd.  The  21st  section  provides  that  no  estate 
for  life  shall  be  limited  as  a  remainder  on  a  term  of  years,  except  to 
a  person  in  being  at  the  creation  of  such  estate.  1  R.  S.  724. 
A  remainder  to  a  person  not  in  being  must  always  be  contingent 
until  his  birth;  and  until  that  event  it  cannot  be  known  that  it  will 
ever  vest  in  interest,  in  whatever  form  it  may  be  limited.  Even  if 
it  is  to  the  general  heirs  of  a  person  in  being  at  the  creation  of  the 
remainder,  it  may  never  become  vested,   as  such  person   may  die 

1  N.  Y.  P.  L.  §§  36,  37.  —  Ed. 


920    FUTURE  ESTATES  AND  INTERESTS  7N  LAND.      [PT.  IV.  CH.  VI. 

without  an  heir.  The  fair  construction  of  these  two  sections  of  the 
statute  taken  together,  therefore,  is,  that  a  contingent  remainder 
upon  a  term  of  years  must  be  so  limited  that  it  will  necessarily  vest 
in  interest  within  the  period  required  by  the  20th  section,  if  it  ever 
becomes  thus  vested.  And  that  a  contingent  remainder  for  life,  to 
a  person  not  in  being,  shall  not  be  limited  on  a  term  of  years, 
although  it  is  so  limited  that  it  will  become  vested  within  that  period, 
if  ever.  Neither  does  this  20th  section  of  the  statute  render  it  abso- 
lutely necessary  that  the  term  of  years,  on  which  a  contingent 
remainder  is  limited,  should  be  made  determinable  upon  lives.  But 
such  remainder  may  be  limited  upon  a  term  in  gross,  if  the  remainder 
itself  is  so  limited  that  it  must  necessarily  become  vested  in  interest, 
if  ever,  during,  or  at  the  expiration  of,  not  more  than  two  specified 
or  ascertained  lives,  in  being  at  the  creation  of  such  remainder. 
Thus,  upon  a  devise  to  A.  for  fifty  years,  as  an  absolute  term, 
remainder  to  B.  for  life,  if  he  should  marry  C,  and  remainder  in  fee 
to  the  children  of  such  marriage.  The  remainder  to  B.,  upon  con- 
dition of  his  marriage  with  C,  is  contingent,  but  must  necessarily 
vest  in  interest,  if  ever,  during  the  period  of  his  own  life,  although  it 
will  never  vest  in  possession  if  he  dies  within  the  term.  And  the 
ultimate  remainder  in  fee  to  the  children  of  the  marriage  must  also 
vest  in  interest,  if  ever,  within  the  period  of  one  life  in  being  at  the 
death  of  the  testator.  The  first  child  of  the  marriage  would,  upon 
its  birth,  take  a  vested  interest  in  the  ultimate  remainder  in  fee, 
subject  to  open  and  let  in  after-born  children.  And  it  would  be  no 
objection  to  the  validity  of  the  contingent  remainders  to  the  child- 
ren, in  the  cases  supposed,  that  a  child  might  not  be  born  in  the 
lifetime  of  the  father,  although  begotten  before  his  death,  and  that 
it  might  be  brought  into  existence  by  the  csesarean  operation,  even 
after  the  death  of  the  mother.  For,  upon  a  limitation  of  a  future 
estate  to  children,  or  heirs,  or  issue,  a  posthumous  child,  if  born 
alive,  is  considered  as  in  existence  and  capable  of  taking  a  vested 
interest  for  its  own  benefit,  in  the  same  manner  as  if  born  and  living 
at  the  death  of  its  parents.  1  R.  S.  725,  sec.  30.'  Marsellis  v. 
Thalheimer,  2  Paige's  Rep.  35. 

1  N.  Y.  R.  P.  L.  §  46.  —  Ed. 


II.  3-]  SPECIAL   RULES   TO    BE   OBSERVED.  921 

2.  Executory  Future  Estates,  Subject  to  a  Condition  Prece- 
dent, Must  Obey  in  their  Creation  the  "Rule  Against 
Perpetuities."  ' 

FIRST  UNIVERSALIST  SOCIETY  v.  BOLAND. 

155  Massachusetts,  171.  —  1892. 
[Reported  herein  at  p.  52s.]2 


3.   In  New  York  and  a  Few  Other  States3  Two  Other  Rules 
are  Substituted  for  the  Rule  Against  Perpetuities. 

a.  "  Every  future  estate  shall  be  void  in  its  creation  which  shall  suspend 
the  absolute  power  of  alienation,  by  any  limitation  or  condition  what- 
ever, for  a  longer  period  than  during  the  continuance  of  not  more 
than  two  lives  in  being  at  the  creation  of  the  estate ;  except  that  a  con- 
tingent remainder  in  fee  may  be  created  on  a  prior  remainder  in  fee, 
to  take  effect  in  the  event  that  the  persons  to  whom  the  first  remainder 
is  limited  die  under  the  age  of  twenty-one  years,  or  on  any  other  contin- 
gency by  which  the  estate  of  such  persons  may  be  determined  before 
they  attain  full  age. ' ' 4 

(1.)  Estates  Subject  to  a  Condition  Precedent  Come  Naturally 
Within  this  Rule. 

HAYNES  v.  SHERMAN. 

117  New  York,  433.  —  1889. 

[Reported  herein  at  p.  q22.^\ 

1  This  rule,  in  general  terms,  is  that  "  no  interest  subject  to  a  condition  prece- 
dent is  good,  unless  the  condition  must  be  fulfilled,  if  at  all,  within  twenty-one 
years  after  some  life  [or  lives]  in  being  at  the  creation  of  the  interest."  Gray, 
Rule  Against  Perpetuities,  §§  201,  214.  Periods  of  gestation,  if  they  occur,  will 
be  included.  §  220,  Gray.  Some  of  our  States  have  rejected  the  absolute  term, 
allowing  an  actual  minority.  This  is  not  a  rule  against  the  suspension  of  the 
power  of  alienation.  It  applies  even  though  the  interest  be  alienable.  Gray's 
Rule  against  Perpetuities,  §  268.  A  "  perpetuity  "  in  the  sense  of  the  rule  is 
not  "  an  inalienable,  indestructible  interest."  but  "  an  interest  which  will  not 
vest  till  a  remote  period."     Id.,  §  140.  —  Ed. 

2  See  Leonard  v.  Burr,  p.  521,  supra.     Sears  v.  Russell,  infra,  p.  1134.  —  Ed. 

3  See  note  p.  S67,  supra.  —  Ed. 

4§  32,  N.  Y.  R.  P.  L.  "  The  absolute  power  of  alienation  is  suspended,  when 
there  are  no  persons  in  being  by  whom  an  absolute  fee  in  possession  can  be 
conveyed."     Id.  —  Ed. 


922    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

(2.)  By  Construction  of  the  Courts  and  Within  the  Spirit  of  the  Rule 
a  Spendthrift  Trust  May  Violate  the  Rule.1 

HAYNES  v.    SHERMAN. 
117  New  York,  433.  —  1SS9. 

Earl,  J.  —  Elijah  T.  Sherman  died  in  the  city  of  New  York  in 
October,  1886,  leaving  his  wife  and  six  children,  him  surviving, 
three  of  them  minors,  and  leaving  a  will  in  which  he  disposed  of  his 
estate  as  follows:  "  After  paying  my  just  debts  I  give,  devise  and 
bequeath  all  my  estate,  real  and  personal  and  mixed,  and  wherever 
situate,  to  my  wife  Catharine  M.  Sherman,  in  trust,  nevertheless,  to 
have  and  to  hold  the  same  and  use  so  much  of  the  income  and 
principal  as  she  may  deem  necessary  for  her  support  and  the  support 
of  our  children  until  our  youngest  child  now  living  shall  arrive  at 
the  age  of  twenty-one  years  or  would  arrive  at  that  age  if  living,  and 
at  that  time  I  order  and  direct  my  said  estate  to  be  divided  among 
my  legal  heirs  then  living  in  such  manner  and  proportion  as  they 
and  each  of  them  would  be  entitled  under  the  laws  of  the  State 
of  New  York  if  I  had  died  intestate."  And  he  appointed  his  wife 
sole  executrix  and  empowered  her  to  sell  and  convey  all  or  any 
portion  of  his  estate  at  such  prices  and  upon  such  terms  as  she 
might  elect. 

The  plaintiff  contends  that  this  disposition  of  his  estate  by  the 
testator  is  invalid  because  it  offends  against  the  statutes  which 
prohibit  perpetuities,  and  that,  therefore,  the  estate  has  passed  as 
if  he  had  died  intestate;  and  we  are  of  that  opinion.  The  youngest 
child  of  the  testator  living  at  the  date  of  his  will  was  born  December 
10,  1872,  and  will  not,  therefore,  attain  the  age  of  twenty-one  years 
until  the  10th  day  of  December,  1893. 

The  defendants  contend  that  the  words  "  or  would  arrive  at  that 
age.  if  living,"  may  be  disregarded,  and  that  the  trust  would  be 
simply  for  the  minority  of  the  youngest  child,  would  terminate  at 
his  death  if  he  died  before  twenty-one,  and  hence  that  it  could  not 
extend  beyond  his  life,  and  is,  therefore,  valid.  When  a  will  con- 
tains separate  trusts,  some  of  which  are  legal  and  some  illegal,  or 
various  limitations  of  estates  not  dependent  upon  each  other  or 
essentially  connected,  some  of  which  are  legal  and  some  illegal,  the 
illegal  portions  maybe  stricken  out  and  the  other  portions  permitted 

'The  new  revision  —  the  Real  Property  Law  of  1S96  —  has  changed  the 
arrangement  of  the  sections  of  the  Revised  Statutes  and  their  phraseology  to 
some  extent.  It  has  been  suggested  that  an  unlawful  suspension  of  the  abso- 
lute power  of  alienation  <  annot  now  arise  merely  on  account  of  the  creation  of 
endthrift  trust,  no  matter  how  many  lives  are  involved.  Chaplin  on 
"  1. -press  Trusts  and  Powers,"     §§383-386, —  Ed. 


II.  3-]  SPECIAL   RULES   TO    BE   OBSERVED.  923 

to  stand;  and  the  books  are  full  of  illustrations  of  such  cases.  The 
courts  will  strive  to  uphold  so  much  of  a  will  as  they  can  without 
frustrating  the  main  intention  of  the  testator  or  violating  any  rule 
of  law.  Here  it  is  clear  that  the  testator  meant  that  the  trust 
should  last,  not  only  during  the  life  of  his  grandchild  if  he  should 
die  before  twenty-one,  but  until  the  time  he  would  reach  twenty-one 
if  living.  It  is  the  same  as  if  he  had  in  terms  created  a  trust  to  last 
until  the  10th  day  of  December,  1893.  It  was  then,  and  not  till 
then,  that  he  meant  his  estate  should  be  divided  among  his  legal 
heirs  living  at  that  time.  There  are  not  two  trust  terms,  but  one, 
and  there  is  but  one  trust,  and  hence  no  part  of  the  trust  term  can 
be  cut  off  and  no  part  of  the  trust  can  be  disregarded  for  the  purpose 
of  rendering  the  remainder  of  the  term  and  trust  valid.  It  matters 
not  that  the  youngest  child  might  live  until  he  should  be  twenty-one. 
He  might  not  live  so  long,  and  that  is  enough  to  condemn  the  trust. 
In  determining  the  validity  of  limitations  of  estate  under  the  Revised 
Statutes,  1  R.  S.  723,  §  15 ; x  Id.  773,  §  1  2,  as  said  by  Grover,  J.,  in 
Schcttler  v.  Smith,  41  N.  Y.  328,  "  It  is  not  sufficient  that  the  estates 
attempted  to  be  created  may,  by  the  happening  of  subsequent  events, 
be  terminated  within  the  prescribed  period  if  such  events  might  so 
happen  that  such  estates  might  extend  beyond  such  period.  In  other 
words,  to  render  such  future  estates  valid,  they  must  be  so  limited 
that  in  every  possible  contingency  they  will  absolutely  terminate  at 
such  period,  or  such  estates  will  be  held  void. 

It  cannot  be  well  said  that  this  trust  was  limited  upon  the  life  of 
the  widow  and  to  terminate  at  her  death.  It  is  doubtless  true 
that  the  testator  expected  that  his  wife  would  live  to  the  termination 
of  the  trust.  But  the  trust  was  for  the  benefit  of  his  children  as  well 
as  his  wife,  and  they  have  an  interest  in  its  execution.  It  was  to 
continue  until  the  division  of  the  estate,  and  that  was  not  to  take 
place  until  December  10,  1893.  If  the  widow  should  die  before  that 
date,  the  trust,  if  valid,  would  devolve  upon  the  court,  and  it  could 
appoint  another  trustee.  The  trust  was  not  so  far  personal  that  it 
would  disappear  with  the  death  of  the  widow.  The  discretion  vested 
in  her  was  not  a  personal  discretion,  but  one  to  be  exercised  by  her 
as  trustee,  which  could,  therefore,  be  devolved  upon  her  successor 
to  be  appointed  by  the  court.  Hull  v.  Hull,  24  N.  Y.  647;  Rogers 
v.  Rogers,  n  1  Id.  228. 

It  is  contended  further,  on  the  part  of  the  defendants,  that,  as  the 
widow  has  full  power  to  use  so  much  of  the  principal  of  the  estate 
as  she  might  deem  necessary  for  the  support  of  herself  and  children, 

'N.  Y.  R.  P.  L.,  §32. —  Ed. 

JN.  Y.  Personal  Property  Law,  §  2.  —  Ed. 


924    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [FT.  IV.  CH.  VI. 

and  as  she  has  full  power  of  sale  the  testator  meant  her  to  have 
dominion  of  the  entire  estate,  and  that  her  children  should  take  what 
she  did  not  use,  and  that  such  disposition  confers  upon  her  a  fee; 
and  the  cases  of  Beaumont  v.  Beaumont,  91  N.  Y.  464;  Wager  v. 
Wager,  96  Id.  164;  and  Crane  v.  Wright,  114  Id.  307,  are  cited  to 
uphold  this  contention.  These  cases,  as  well  as  certain  provisions 
of  the  Revised  Statutes  (1  R.  S.  733,  §§  81-83),  would  have  been 
controlling  if  the  testator  had  given  his  widow  the  absolute  power  to 
dispose  of  the  estate  for  her  sole  benefit.  But  she  was  not  solely 
interested  in  the  estate.  She  was  a  trustee  and  was  clothed  with  a 
power  for  the  benefit  of  others  as  well  as  herself,  and,  therefore,  she 
took  no  greater  or  other  estate  under  the  will  than  its  terms  gave  her. 

As  there  was  here  an  absolute  power  of  sale  conferred  upon  the 
widow,  it  cannot  be  said  that  the  power  to  alienate  the  real  estate 
was  suspended.  But  the  proceeds  of  the  sales  of  the  real  estate, 
whether  regarded  as  realty  or  personalty,  would  be  tied  up  by  the 
trust,  in  violation  of  the  provisions  of  the  Revised  Statutes  first  above 
referred  to,  and  hence  the  power  of  sale  does  not  save  the  provisions 
of  the  will  from  condemnation. 

This  estate  did  not  vest  in  the  testator's  children  at  his  death. 
It  vested  in  the  widow  as  trustee,  and  at  the  termination  of  the  trust 
period  what  remained  of  it  was  to  vest  in  the  testator's  legal  heirs 
then  living  as  if  he  had  then  died  intestate.  There  were,  therefore, 
no  persons  in  being  at  the  death  of  the  testator,  assuming  the  trust 
to  be  valid,  who  could  convey  an  absolute  title  to  the  estate.  The 
trust  stood  in  the  way  of  such  a  conveyance  as  well  as  the  impossi- 
bility of  determining  who  would  take  the  estate  after  it  passed  from 
under  the  trust. 

We  are,  therefore,  brought  to  the  conclusion  that  the  judgment  of 
the  General  Term  should  be  reversed  and  that  of  the  Special  Term 
affirmed,  and  that  the  costs  of  all  parties  upon  the  appeal  to  the  Gen- 
eral Term  and  in  this  court  should  be  paid  out  of  the  estate. 

Judgment  reversed. 


b.   "Estates    in    l  Remainder1   Shall  be    so   Limited  that    Within   the 
Statutory  Period,  if  Ever,  they  Must   Vest  in  Interest."  ' 

1  Chaplin  on  The  Suspension  of  the  Power  of  Alienation,  §  1.  The  term 
"  remainder  "  is  here  used  in  the  broad  sense  given  to  it  by  the  New  York  stai- 
Utes.  Sec  note,  p.  867,  supra.  This  rule  is  nowhere  stated  in  terms  in  the 
N.  Y.  statute,  but  is  a  generalization  from  ££  32-36,  40,  N.  Y.  R.  P.  L.  The 
"  statutory  period  "  is  two  lives  in  being  at  the  creation  of  the  estate,  except  in 
the    case    of    B    contingent   remainder  limited   on   a  fee.      ^32.      See  ^jg  319,  323, 

Chaplin.  —  Ed, 


III.]  DESCENT,    DEVISE   AND   ALIENATION.  925 

4.   The  Rule    Restricting    the  Accumulation   of    the  Income 

of  Land.1 

III.  Descent,  devise  and  alienation  of  future  estates  and  interests 
in  land;- 

HALL  v.  CHAFFEE. 
14  New  Hampshire,  215.  —  1843. 

Another  question  in  the  case  arises  from  the  deed  by  Mrs.  Hall. 
It  appears  that  on  the  26th  day  of  April,  1824,  the  petitioner  and 
her  husband,  by  their  quit-claim  deed,  conveyed  to  Gaius  Hall  "  all 
our  right,  title  and  claim  to  all  the  land  or  real  estate  willed  to  us 
by  Seth  Britton."  The  defendants  have  all  the  right  and  interest 
of  Gaius  Hall.  Mrs.  Chaffee  died  in  the  year  1839.  The  question 
is,  whether  the  interest  which  Mrs.  Hall  took  under  the  will,  being 
by  way  of  executory  devise,  could  be  transferred  by  such  a  convey- 
ance? A  contingent  remainder  does  not  confer  any  interest  which 
is  grantable.  Shep.  Touch.  238.  At  common  law,  a  possibility  was 
held  not  to  be  assignable.  6  Cruise,  tit.  39,  §  47.  Contingent 
executory  interests  or  possibilities  may  be  passed  at  law  by  fine,  by 
way  of  estoppel.  Fearne  on  Rem.  551.  An  assignment  of  a  con- 
tingent interest  in  lands  of  inheritance  may  be  carried  into  execu- 
tion by  a  court  of  chancery,  upon  the  ground  that  it  is  such  a 
contract  that  its  specific  performance  may  be  decreed.  Wright  v. 
Wright,  1  Vesey,  Sen.  409.  It  may  be  transferred  by  deed  in  equity 
to  a  stranger.  Higden  v.  Williamson,  3  P.  Wins.  132.  A  court  of 
law,  however,  will  not  recognize  the  assignment  of  such  interests 
before  they  vest  in  possession.  2  Prest.  Abstr.  118.  If  A  have  a 
term  for  1,000  years,  and  devise  it  to  B  for  life,  remainder  to  C  and 
his  heirs,  C  may  release  his  interest  to  B,  although  he  cannot  grant 
it  over.  1  Co.  no,  114,  Albany  s  Case;  10  Co.  47,  51,  52,  Lampet" s 
Case. 

But  the  deed  of  the  petitioner  contained  a  covenant  of  warranty 
against  all  claims  under  the  grantors,  and  the  effect  of  this  covenant 
remains  to  be  considered.  And  here  the  case  of  Blanchard  v. 
Brooks,  12  Pick.  47,  is  in  point.  In  that  case,  a  person  being  the 
devisee  of  a  contingent,  and  also  of  a  vested  remainder  in  lands, 
made  a  deed,  with  covenants  of  general  warranty,  and  for  quiet 
enjoyment,  purporting  to  convey  all  his  "  undivided  share  or  por- 
tion, right,  title  and  interest  of,  in  and  to  "  the  lands.      Mr.  Ch.  Jus- 

'  This  rule  is   statutory.     For  the  New  York  Statute,   see  the  N.  Y.  R.  P.  L., 

§§  5I-53- 

5  See  §  49,  N.  Y.  R.  P.  L.  —  Ed. 


926    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CII.  VI. 

Shaw  says:  "  The  grant  in  the  deed  is  of  all  his  right,  title  and 
interest  in  the  land,  and  not  of  the  land  itself,  or  of  any  particular 
estate  in  the  land.  The  warranty  is  of  the  premises,  that  is,  of  the 
estate  granted,  which  was  all  his  right,  title  and  interest."  "  The 
grant  in  legal  effect  operated  only  to  pass  the  vested  interest,  and 
not  the  contingent  interest,  and  the  warranty  being  coextensive 
with  the  grant,  did  not  extend  to  the  contingent  interest,  and  of 
course  did  not  operate  upon  it  by  way  of  estoppel."  It  was  held 
that  the  plaintiff  was  not  bound  as  a  privy  in  estate  with  the  grantor. 
The  opinion  of  the  court  is,  that  the  petitioner  is  not  estopped  by 
her  deed  to  claim  the  land. 


HAVENS  v.  SEA  SHORE  LAND  CO. 

47  New  Jersey  Equity,  365.  — 1890. 

Van  Vleet,  V.-C.  —  This  is  a  partition  suit.  The  title  to  one  of 
the  tracts  which  the  complainants  seek  to  have  divided  is  in  dispute. 
The  defendant  asserts  title  to  the  whole  tract;  the  complainants,  on 
the  other  hand,  assert  a  title  to  the  undivided  half  of  it,  but  admit 
that  the  defendant  has  title  to  an  undivided  fourth  and  that  the  title 
to  the  other  undivided  fourth  is  in  certain  other  persons.  The 
defendant  exhibits  a  paper  title  to  the  whole  tract;  the  important 
question,  therefore,  presented  for  decision  is,  is  the  title  exhibited 
by  the  defendant  valid?  for  if  it  is,  the  bill  as  against  the  defendant, 
as  to  that  tract,  must  be  dismissed. 

Both  parties  claim  under  David  Curtis,  who  died  intestate  between 
1783  and  1788.  At  the  time  of  his  death  he  owned  two  undivided 
sevenths  of  Manasquan  Beach,  one  of  which  he  acquired  from  Elisha 
Lawrence,  by  deed  dated  July,  1770,  and  the  other  from  Benjamin 
Lawrence,  by  a  deed  which  it  is  alleged  is  lost.  Among  the  gifts 
made  by  David  Curtis  by  his  will  there  is  one  which  reads,  in  sub- 
stance, as  follows: 

"  I  give  and  devise  unto  my  eldest  son,  Elisha,  that  right  of  beach 
I  bought  of  Elisha  Lawrence  —  to  him  and  the  heirs  of  his  body 
lawfully  begotten,  and  for  the  want  of  such  heir  or  heirs,  then  to 
be  equally  divided  between  my  two  sons,  John  and  Benjamin." 

David  Curtis,  besides  limiting  over  to  his  two  sons,  John  and 
Benjamin,  the  land  devised  to  his  son,  Elisha,  made  John  and 
Benjamin  his  residuary  devisees,  and  they,  as  such  devisees,  took 
that  undivided  seventh  of  Manasquan  Beach  which  had  been  con- 
d  to  their  father  by  Benjamin  Lawrence.  The  thing  in  dispute 
is  the  one-half  of  that  seventh  which  David  Curtis  acquired  from 
Elisha   Lawrence,  and   which  he  by  his  will  limited  over  to  his  son 


III.]  DESCENT,    DEVISE   AND   ALIENATION.  927 

John  in  case  his  son  Elisha,  for  the  want  of  heirs  of  his  body,  did 
not  take  it.  The  defendant  claims  this  half  and  puts  forward  as  the 
foundation  of  its  title  a  deed  purporting  to  have  been  made  on  the 
31st  day  of  May  1788,  by  John  Curtis  to  Joseph  Lawrence.  The 
whole  contest  between  the  parties  centres  in  this  deed.  If  it  passed 
the  land  in  controversy,  the  defendant  will  be  entitled  to  prevail  in 
this  suit;  if  it  did  not,  the  complainants  will  be  entitled  to  the 
decree  they  ask.  The  complainants  contend,  first,  that  the  deed 
has  not  been  sufficiently  proved  to  entitle  it  to  be  admitted  in  evi- 
dence; and,  secondly,  that  if  it  was  admitted,  no  effect  could  be 
given  to  it  —  first,  for  the  want  of  apt  words  to  pass  any  right  or 
estate  which  the  grantor  may  have  held  at  the  time  of  its  execution; 
and,  second,  because  the  grantor  then  held  no  right  or  estate  in  the 
land  which  he  could  grant  or  convey.  These  questions  will  be  con- 
sidered in  an  order  directly  the  reverse  of  that  in  which  they  have 
just  been  stated. 

It  is  undisputed  that  Elisha  Curtis,  the  eldest  son  of  David,  died 
childless,  never  having  had  issue  of  his  body.  John  died  before 
Elisha.  Their  deaths  occurred  very  near  together  in  point  of  time, 
but  the  proof  makes  it  entirely  clear  that  John  died  first,  so  that  it 
was  undetermined  when  John  died  whether  or  not  Elisha  would  have 
issue  of  his  body.  As  the  law  stood  when  the  devise  to  Elisha  took 
effect,  it  is  clear  that  he  took  an  estate  tail  in  the  land  devised.  Our 
statute  cutting  an  estate  tail  down  to  an  estate  for  life  in  the  first 
taker,  with  remainder  in  fee  to  the  issue  of  his  body,  was  not  passed 
until  1820,  Elm.  Dig.  130,  §  6,  and  the  devise  to  Elisha  took  effect 
prior  to  1788.  Chief  Justice  Kirkpatrick  stated  with  great  clearness 
in  Den  v.  Taylor,  2  South.  413,  417,  what  words  would  be  held  to 
be  sufficient  to  create  an  estate  tail.  He  said:  "  It  is  well  settled 
that  a  devise  to  one  and  his  heirs  if  he  die  without  issue,  then  over 
to  another,  creates  an  estate  tail,  as  if  the  principal  devise  had  been 
in  the  most  technical  language,  to  him  and  the  heirs  of  his  body. 
The  words  of  the  devise  over  —  if  he  die  without  issue  then  over  to 
another  —  limit  the  generality  of  the  term  heirs  in  the  principal 
devise,  and  lead  us  to  the  inevitable  conclusion  that  the  testator 
intended  heirs  of  the  body  only,  and  not  heirs  generally.  And 
whenever  this  intention  can  be  collected  from  the  whole  will,  taken 
together,  let  the  phraseology  in  the  particular  clauses  of  it  be  what 
it  may,  it  has  been  always  construed  to  make  an  estate  tail."  This 
statement  of  the  law  has  been  so  uniformly  followed  by  the  courts 
of  this  State  as  to  have  become  a  canon  of  real  property  law.  Moore 
v.  Rake,  2  Dutch.  574,  585.  It  is  entirely  clear  that  Elisha  Curtis 
took  an  estate  tail  ;n  the  land  in  controversy. 


928    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

This  being  so,  it  necessarily  follows  that  the  devise  over  to  John 
and  Benjamin,  in  case  Elisha  did  not  have  issue  of  his  body,  gave 
them  a  vested  remainder  in  fee,  subject  to  be  defeated  by  the  birth 
of  issue  to  Elisha.  The  law  is  settled,  that  a  remainder  limited  upon 
an  estate  tail  will  be  held  to  be  vested,  though  it  is  uncertain  whether 
a  right  to  possession  will  ever  vest  in  the  remainderman.  The 
decision  of  the  Court  of  Errors  and  Appeals  in  Moore  v.  Rake,  2 
Dutch.  574,  is  directly  in  point,  and  furnishes  an  authoritative  illus- 
tration of  the  manner  in  which  this  principle  of  law  is  to  be  applied. 
The  devise  in  that  case  took  effect  in  1795,  and  was  expressed  sub- 
stantially in  this  form: 

"  I  give  to  my  son  Isaac,  his  heirs  and  assigns,  all  my  lands 
whereon  I  now  live,  to  hold  to  him,  his  heirs  and  assigns  forever, 
but  if  my  son  Isaac  should  die  without  lawful  issue,  then  I  give  all 
my  land  to  my  wife,  her  heirs  and  assigns  forever." 

The  testator's  son  Isaac  died  in  1843,  without  issue,  never  having 
been  married.  His  mother,  the  testator's  widow,  died  in  1832,  over 
ten  years  before  Isaac.  The  controverted  question  in  the  case  was 
what  estate  the  testator's  wife  took  under  the  devise.  The  court 
held  that  she  took  a  vested  remainder,  and  not  by  way  of  an  execu- 
tory devise,  nor  a  contingent  remainder.  Each  of  the  three  judges 
who  wrote  opinions  —  Chancellor  Williamson  and  Justices  Elmer 
and  Vredenburgh  —  so  expressly  declared.  Justice  Vredenburgh 
(p.  586)  gave  the  following  summary  of  the  leading  rules  distinguish- 
ing a  vested  from  a  contingent  remainder:  "  An  estate  is  vested 
when  there  is  a  present  fixed  right  of  present  or  future  enjoyment. 
The  law  favors  the  vesting  of  remainders,  and  does  it  at  the  first 
opportunity.  It  is  the  present  capacity  of  taking  effect  in  pos- 
session, if  the  possession  were  to  become  vacant,  that  distinguishes 
a  vested  from  a  contingent  remainder.  It  is  the  uncertainty  of  the 
right  which  renders  a  remainder  contingent,  not  the  uncertainty  of 
the  actual  enjoyment.  A  remainder  limited  upon  an  estate  tail  is 
held  to  be  vested,  though  it  is  uncertain  if  the  possession  will  ever 
take  place."  There  can,  therefore,  be  no  doubt  that  John  Curtis, 
by  force  of  the  devise  to  him,  took  a  vested  remainder  in  fee  in  the 
land  in  controversy,  and  it  is  equally  certain,  if  such  was  the 
character  of  his  estate,  that  he  had  good  right  and  full  power  to 
1  ;m  effectual  conveyance  of  it  during  the  life  of  his  brother 
Elisha. 

If  a  different  conclusion  had  been  reached  as  to  the  nature  of 
John's  estate,  and  it  had  been  found  that  the  remainder  limited  to 
him  was  contingent,  still  1  think  the  court  would  have  been  bound 
to  declare,  in  conformity  to  the  well-settled  law  on  this  subject,  that 


III.]  DESCENT,    DEVISE   AND   ALIENATION.  929 

he  had  full  power,  during  the  life  of  Elisha,  to  make  an  effectual  con- 
veyance of  his  estate  in  the  land,  though  it  was  uncertain  whether 
such  estate  would  ever  vest  in  possession.  All  contingent  estates  of 
inheritance,  or  possibilities  coupled  with  an  interest,  where  the  per- 
son who  is  to  take  is  certain,  may  be  conveyed  or  devised  before  the 
contingency  on  which  they  depend  happens.  In  Acker  man  s  Admr. 
v.  Vrceland's  Exr.,  1  McCart.  23,  29,  Chancellor  Green  said,  it  may 
be  relied  on  as  a  rule,  that  every  interest  in  land,  however  remote 
the  possibility  is,  may  be  released.  The  law  on  this  subject  as 
stated  by  Sergeant  Williams,  in  his  note  to  Purefoy  v.  Rogers,  2 
Saund.  388k,  and  adopted  by  the  Supreme  Court  in  Den  v.  Manners, 
Spen.  142,  145,  and  restated  approvingly  by  Justice  Vredenburgh  in 
Moore  v.  Rake,  2  Dutch.  593,  is  this:  "  It  seems  now  to  be  estab- 
lished, notwithstanding  some  old  opinions  to  the  contrary,  that  con- 
tingent and  executory  estates  and  possibilities,  accompanied  by  an 
interest,  are  descendible  to  the  heir,  or  transmissible  to  the  repre- 
sentative of  a  person  dying,  or  may  be  granted,  assigned  or  devised 
by  him,  before  the  contingency  upon  which  they  depend  takes 
effect."  These  authorities  make  it  plain  that  the  first  question  must 
be  decided  in  favor  of  the  defendant.  At  the  date  of  the  deed  which 
the  defendant  puts  forward  as  the  foundation  of  its  title  there  can 
be  no  doubt  that  John  Curtis  had  full  power  to  make  an  effectual 
conveyance  of  the  land  in  controversy.     *     *     * 


In  re  JACKSON'S  DEED. 

4  Keyes  (N.  Y.),  369,  and  Other  Cases. 

[Reported  herein  at  pp.  S90-902.] 


BATES  v.  SHRAEDER. 

13  Johnson  (N.  Y.),  260.  —  1816. 

[Reported  herein  at  p.  460.  ]' 


NICOLL  v.  NEW  YORK  AND  ERIE  R.  R.  CO. 

12  New  York,  121.  — 1854. 

[Reported  herein  at  p.  527.] 


UPINGTON  v.  CORRIGAN. 

151  New  York,  143. —  1896 

[Reported  herein  at  p.  533.] 


1  See  also  Cook  v.  Hammond,  4  Mason,  467,  Fed.  Cases  No.  3159.  —  Ed. 
LAW  OF  PROP.   IN  LAND  —  65 


930    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [FT.  IV.  CH.  VI. 
IV.  The  destruction  of  future  estates  and  interests  in  land.1 
Brayton,  J.,  in  WILLIAMS  v.  ANGELL. 
7  Rhode  Island,  145.  — 1862. 

A  second  objection  suggested  to  this  title  of  the  wards  is,  that  the 
title  has  been  forfeited  under  the  condition  imposed  upon  the  estate 
for  life.  This  condition  was,  that  the  tenant  for  life  should  pay  into 
the  hands  of  Elisha  Harris,  appointed  a  trustee  for  that  purpose, 
yearly,  the  sum  of  twenty-five  dollars.  This  annuity  was  not  paid. 
The  arrears  amounted,  in  1841,  to  the  sum  of  $211.77,  no  part  of 
which  has  ever  been  paid.  It  is  suggested  that  the  life-estate,  by 
the  forfeiture,  was  destroyed  before  the  birth  of  issue,  and  before 
the  remainder  could,  by  law,  vest,  and  so  the  remainder  failed  for 
want  of  this  estate  to  support  it. 

By  failure  to  pay.  and  suffering  the  annuity  to  be  in  arrear,  the 
life  estate  became  liable  to  forfeiture;  and  had  the  proper  proceed- 
ings been  taken  to  avoid  the  estate  for  this  cause,  and  equity  had 
not  relieved  against  it,  as  it  might,  it  might  have  been  and  would 
have  been  destroyed.  In  order  to  the  forfeiture  in  such  case,  how- 
ever, it  is  necessary  that  there  should  be  an  entry  for  condition 
broken,  or  claim  by  the  heirs  for  the  purpose  of  avoiding  the  estate. 

Co.  Lit.,  §  247;  2  Bl.  Com.  135;  Cruise  Digest,  c.  xxxii.,  §  30. 
No  direct  claim,  and  no  entry  were  ever  made  for  the  forfeiture  of 
this  estate  while  it  existed;  but  it  remained  subsisting  in  the  donee 
until  it  expired  by  its  own  limitation,  upon  his  death,  and  until,  by 
the  terms  of  the  will,  the  remainder  vested  in  his  issue. 


JORDAN  v.  McCLURE. 

85  Pennsylvania  State,  495.  —  1877. 

Sharswood,  J.  —  *  *  *  But  let  us  concede  that  the  instru- 
ment of  May  6th,  1819,  is  distinguishable  from  that  in  Turner  v. 
Scott,  supra,  that  it  was  not  a  will  but  an  irrevocable  grant.  Eckman 
v.  Eckman,  18  P.  F.  Smith  460.  It  conveys  to  Pomp,  Tamer  and 
Betty  the  premises  "  for  their  own  use  during  their  natural  life,  and 
afterwards  to  their  lawful  [issue],  if  they  have  any,  and  if  not  [no] 
lawful  issue  remains  after  their  deaths,  the  above  described  lands 
shall  revert  to  the  lawful  heirs  of  James  Nicholson,  and  the  said 
Pomp,  Tamer  and  Betty  Mathers  art-  to  take  possession  of  said  tract 

1  See  Moore  v.  Littel  p.  894  tupra,  ;it  p.  897.  See  also  N.  Y.  R.  P.  L.  §§  47-48. 
—  Ed. 


IV.]  DESTRUCTION    OF    FUTURE   ESTATES.  931 

of  land  immediately  after  the  decease  of  the  said  James  Nicholson 
and  Mary,  his  wife,  and  not  before,  then  to  have  full  possession, 
one  or  more  of  them,  during  their  natural  life  and  the  life  or  lives 
of  their  lawful  issue,  which  land  by  them,  or  any  one  or  more  of 
their  lawful  issue  shall  not  be  allowed  to  rent  or  dispose  of  in  any 
way  or  manner  whatsoever." 

If  this  instrument  were  a  will  and  to  be  construed  according  to 
the  principles  applied  in  such  cases,  there  would  be  great  reason  for 
holding  the  limitation  to  be  that  of  an  estate  tail  to  Pomp,  Tamer 
and  Betsey.  But  it  is  a  deed  and  the  word  "  issue  "  will  not  supply 
the  want  of  the  word  "heirs"  in  a  deed.  2  Black.  Com.  115. 
Lord  Coke  tells  us,  on  the  authority  of  Littleton,  that  if  a  man 
giveth  land  to  a  man  et  exiHbus  de  corpore  suo,  legitimate procreatis  or 
semine  suo  he  hath  but  an  estate  for  life,  for  that  there  wanteth  words 
of  inheritance.     Co.  Litt.  20  b. 

Taking  the  entire  clause  together  we  are  of  the  opinion  that  it 
granted  an  estate  for  their  lives  to  Pomp,  Tamer  and  Betty,  with  a 
remainder  to  their  children  for  their  lives.  This  was  of  course  a 
contingent  remainder  to  the  children,  as  there  were  none  then  in 
being.  The  reversion  in  fee  was  invested  in  James  Nicholson,  for  a 
limitation  to  the  right  heirs  of  the  grantor  continues  in  him  as  the 
old  reversion.  Fearne  on  Cont.  Rem.  50.  James  Nicholson 
devised  this  reversion  after  the  death  of  his  widow  to  Pomp,  Tamer 
and  Betty  in  fee,  subject  as  we  have  seen  to  an  executory  devise 
over  to  the  survivor.  When  it  vested  in  them  a  merger  of  their  life 
estate  held  under  the  deed  immediately  took  place  —  of  the  lesser 
into  the  greater  estate.  No  children  of  Pomp,  Tamer  and  Betty 
had  been  then  born  —  the  life-estate  to  them  in  remainder  was  still 
in  contingency.  It  was  destroyed  by  the  merger,  a  familiar  and 
well-settled  principle.  Fearne  on  Cont.  Rem.  323.  The  life-estate 
in  remainder  was  left  without  any  particular  estate  to  support  it  and 
it  fell.     The  deed  to  McClure  then  passed  to  him  the  fee. 

Thus  we  conclude  that  quacunque  via  data,  whether  the  instrument 
of  May  6th,  1819,  be  regarded  as  a  will  or  as  a  deed,  the  title  to  the 
premises  was  in  the  defendant  below. 

Judgment  affirmed. 


932    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.     [PT.  IV.  CH.  VI. 

WADDELL  v.  RATTEW. 
5  Rawle  (Penn.),  230.  —  1S35. 

Kennedy,  J.  — As  the  question  to  be  decided  in  this  case  arises 
out  of  the  will  of  John  Rattew,  deceased,  it  becomes  necessary  in 
order  to  solve  it  correctly,  to  ascertain,  if  possible,  from  the  face  of 
the  will  itself,  what  was  the  intention  of  the  testator.  And  after 
having  discovered  this,  it  will  be  our  duty  in  construing  the  devise 
in  question,  to  carry  it  into  effect,  so  far  as  it  shall  be  found  con- 
sistent with  the  rules  and  policy  of  the  law  to  do  so. 

The  words  of  the  will  which  have  given  rise  to  the  present  contro- 
versy are:  "  Item,  I  give  and  bequeath  to  my  son  Aaron,  the  mes- 
suage, plantation,  and  tract  of  land,  where  my  son  John  now  lives, 
in  Middleton  township,  containing  about  one  hundred  and  nineteen 
acres,  more  or  less,  with  the  appurtenances,  to  hold  to  him,  my  said 
son  Aaron,  during  the  term  of  his  natural  life,  and  if  he  shall  here- 
after have  issue  of  his  body  lawfully  begotten,  then  to  hold  to  him, 
and  his  heirs  and  assigns  forever;  but  in  case  he  shall  die  without 
having  such  issue,  then  I  give  and  devise  the  same  to  all  the  rest  of 
my  children,  and  their  heirs  and  assigns  forever,  as  tenants  in 
common." 

The  plaintiff's  counsel  contend  that  Aaron  took  under  the  will  a 
conditional  fee,  determinable  upon  his  dying  without  issue  living  at 
his  death,  and  that  the  limitation  over  in  that  event  to  the  testator's 
other  children,  must  therefore  be  considered  an  executory  devise, 
and  consequently  not  affected  by  the  common  recovery  suffered  by 
Aaron;  or,  in  other  words,  they  allege  that  Aaron,  according  to  the 
terms  of  the  will,  in  case  he  had  had  issue,  would  thereupon  have 
become  immediately  vested  with  a  fee  simple  estate  in  the  land 
devised  to  him,  defeasible,  however,  upon  his  dying  without  issue 
living  at  the  time  of  his  death.  The  birth  of  issue  would  have 
instantly  determined  his  life  estate,  by  enlarging  it  into  a  fee;  and 
again  in  the  event  of  his  surviving  such  issue,  and  dying  without  any 
living  at  the  time  of  his  death,  the  ulterior  devise  to  the  other  chil- 
dren of  the  testator  could  only  have  operated  as  an  executory  devise; 
because,  as  a  contingent  remainder,  it  could  not  take  effect  after  the 
determinable  fee  had  become  vested  in  Aaron.  I  must  confess  that 
this  view  of  the  devise  in  question  when  first  presented  by  the 
counsel  for  the  plaintiff  struck  me  forcibly  as  having  something  in 
it;  and  it  was  certain! y  maintained  on  their  part  with  great  ingenuity. 
And  if  Aaron  had  nol  suffered  the  common-law  recovery  and  had  had 
issue,  who  had  dud  during  his  life:,  and  he  had  then  died  himself 
without  any  living  at  the  time  of   his  death,  it   may  possibly  be  that 


IV.]  DESTRUCTION   OF   FUTURE   ESTATES.  933 

the  ulterior  devise  of  the  land  to  the  other  children  of  the  testator 
would  have  been  operative  and  taken  effect  as  an  executory  devise, 
for  it  has  been  said  that  an  estate  may  be  devised  over  in  either  of 
two  events,  so  that  in  the  one  event  the  devise  may  operate  as  a 
contingent  remainder,  and  in  the  other  as  an  executory  devise. 
Doe  v.  Selby,  2  Earn.  &  Cress.  926;  s.  c.  9  Eng.  Com.  Law  Rep.  277; 
2  Pow.  on  Dev.  by  Jarman,  245. 

Be  this,  however,  as  it  may,  the  event  which  has  occurred  in  this 
case  does  not  render  it  necessary  to  decide  it  under  such  aspect; 
but  if  it  did,  I  see  no  objection  that  could  be  made  to  it,  unless  it 
might  possibly  be  thought  by  some,  that  to  adopt  such  a  principle 
would  be  entrenching  upon  a  rule  that  has  been  said  to  prevail  with- 
out even  an  exception  to  it;  which  is,  that  when  a  devise  is  capable, 
according  to  the  state  of  the  objects  at  the  death  of  the  testator,  of 
taking  effect  as  a  remainder,  it  shall  not  be  construed  to  be  an 
executory  devise.  Reeve  v.  Long,  Carth.  310;  Purefoy  v.  Rogers,  2 
Saund.  380,  and  cases  cited  in  note  (9),  also  2  Pow.  on  Dev.  by 
Jarman,  237.  Besides  these  there  is  said  to  be  another  rule  by 
which  an  executory  devise  is  distinguishable  from  a  contingent 
remainder,  which  seems  to  be  opposed  to  the  construction  contended 
for  by  the  plaintiff's  counsel;  it  is  this:  That  to  constitute  an 
ulterior  limitation,  an  executory  devise  where  there  is  a  prior  estate 
of  freehold  devised,  the  latter  must  not  be  merely  liable  to  be 
determined  before  the  former  shall  take  effect,  which  only  renders 
the  remainder  dependent  on  it  contingent,  but  it  must  be  determined 
before  the  taking  effect  of  the  ulterior  devise;  as  in  the  case  of  a 
devise  to  A.  for  life,  and  after  his  decease  to  the  unborn  children  of 
B.,  this  would  be  a  contingent  remainder  in  such  children ;  but  under 
a  devise  to  A.  for  life,  and  after  his  decease  and  one  day  to  the 
children  of  B.,  the  children  of  B.  in  this  case  would  take  an  execu- 
tory devise.  2  Pow.  on  Dev.  by  Jarman,  238.  And  for  the  day 
undisposed  of,  between  the  death  of  A.  and  the  time  fixed  for  the 
ulterior  devise  to  the  children  of  B.  to  take  effect,  the  estate  would 
belong  to  the  heir  or  residuary  devisee.  Ibid.  Stephens  v.  Stephens, 
Ca.  Temp.  Talb.  238.  Now,  it  is  obvious  in  the  case  under  con- 
sideration, that  the  prior  estate  devised  to  Aaron  for  life  could  not 
be  said  to  be  necessarily  determinable  before  the  time  at  which  the 
ulterior  limitation  over  to  the  other  children  of  the  testator  was  to 
take  effect;  it  was  at  most,  even  upon  the  construction  contended 
for  by  the  counsel  of  the  plaintiff,  only  liable  to  be  determined  before 
that  event  might  happen;  and  hence  according  to  the  rule  just  men- 
tioned cannot,  or  at  least  in  the  event  that  has  occurred  cannot,  be 
considered  an  executory  devise,  but  must  be  deemed  a  contingent 


934    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.      [PT.  IV.  CH.  VI. 

remainder.  This  construction  seems  to  be  requisite  also,  for  the 
purpose  of  carrying  into  effect  an  intention  pretty  plainly  manifested 
by  the  testator,  that  Aaron  should  not  have  it  in  his  power  to  dispose 
of  the  land  beyond  the  period  of  his  own  life;  so  that  by  construing 
the  prior  devise  to  Aaron,  for  the  term  of  his  natural  life,  an  absolute 
vested  estate  in  him  for  life,  making  it  neither  more  or  less  with  a 
contingent  remainder  to  him  in  fee  upon  his  dying,  leaving  issue 
living  at  the  time  of  his  death;  we  give  full  effect  to  the  letter  of  the 
will,  as  well  as  the  intent  of  the  testator.  If  the  fee  given  to  Aaron, 
which  is  admitted  to  have  been  determinable,  had  vested  in  him  dur- 
ing his  life,  the  limitation  over  to  the  other  children  of  the  testator 
could  only  have  taken  effect  as  an  executory  devise,  but  being  ever 
in  contingency  and  the  event  having  failed  upon  which  it  is  claimed 
by  the  counsel  for  the  plaintiff,  that  it  would  have  become  vested, 
the  ulterior  devise  of  the  land  to  the  other  children  had  all  the  prop- 
erties of  a  contingent  remainder,  and  as  such  might  and  would  have 
taken  effect,  if  the  recovery  had  not  been  suffered,  and,  therefore, 
could  not  have  operated  as  an  executory  devise.  The  devise  to  the 
other  children  of  the  testator,  is  not  then  the  case  of  a  limitation 
over  to  them,  after  a  prior  vested  determinable  fee  given  to  Aaron, 
which  would  make  it  an  executory  devise,  but  it  is  one  of  two  several 
fees  limited  merely  as  substitutes  or  alternatives,  one  for  the  other, 
that  is,  the  first  to  Aaron,  if  he  should  die  leaving  issue  living  at  the 
time  of  his  death;  but,  if  not,  then  to  the  other  children  of  the  testa- 
tor in  lieu  thereof;  thus  substituting  the  latter  in  the  room  of  the 
former,  if  it  should  fail  of  effect.  This  is  the  principle  which  was 
decided  in  Loddington  v.Kyme,  3  Lev.  431;  s.  c.  1  Ld.  Raym.  208, 
where  it  was  held  that  the  first  remainder  was  a  contingent  remainder 
in  fee  to  the  issue  of  A.,  and  the  remainder  to  B.  was  also  a  con- 
tingent fee,  not  contrary  to,  or  in  any  degree  derogatory  from  the 
effect  of  the  former,  but  by  way  of  substitution  for  it.  And  this 
of  alternative  limitation,  was  termed  a  contingency  with  a 
double  aspect.  Fearne  on  Cont.  Rem.  373.  So  that  if  the  estate 
vested  in  the  one,  it  never  could  in  the  other.  Herbert  v.  Selby,  2 
Barn.  &  Cress.  926;  s.  c.  9  Eng.  Com.  L.  Rep.  278.  The  ulterior 
devise  then  to  the  other  children  of  the  testator,  being  considered  in 
the  event  that  has  taken  place,  a  contingent  remainder,  and  Aaron, 
uffering  the  common  recovery,  having  determined  his  life-estate, 
the    only    proof   of   the    remainder,  before    it    became  vested,   it  fell, 

and  never  could  take  effect  afterwards. 

Tin    plaintiffs,  therefore,  have  no  right  to   recover  the  land,  and 
the  judgmenl  is  affirmed. 


IV.]  DESTRUCTION    OK    FUTURE    ESTATES.  935 

RICE    v.   BOSTON    &    WORCESTER    RAILROAD    CORPORA- 

TION. 

12  Allen  (Mass.),  141.  —  1866. 

Writ  of  entry.  Demandant's  father  conveyed  the  premises  in 
question  to  the  railroad  corporation  in  1834,  by  a  warranty  deed 
which  stated  that  the  conveyance  was  made  upon  the  express  con- 
dition that  the  corporation  should  forever  maintain  and  keep  in 
good  repair  a  pass-way  over  the  same,  and  also  certain  fences.  In 
1842  demandant's  father  conveyed  to  him  by  a  deed  of  warranty  a 
large  tract  the  description  of  which  included  the  demanded  prem- 
ises, and  died  intestate  before  any  breach  of  the  condition. 
Demandant  offered  evidence  of  a  breach  of  condition  after  his 
father's  death.  The  judge  excluded  the  evidence  and  demandant 
excepts. 

Bigelow,  C.  J.  —  It  is  one  of  the  established  rules  of  the  common 
law  that  the  right  or  possibility  of  reverter  which  belongs  to  a 
grantor  of  an  estate  on  condition  subsequent  cannot  be  legally  con- 
veyed by  a  deed  to  a  third  person  before  entry  for  a  breach.  This 
rule  is  stated  in  Co.  Litt.  214  a,  in  these  words:  "  Nothing  in 
action,  entry  or  re-entry  can  be  granted  over;"  and  the  reason 
given  is  "  for  avoiding  of  maintenance,  suppressing  of  rights  and 
stirring  up  of  suits,"  which  would  happen  if  men  were  permitted 
"  to  grant  before  they  be  in  possession."  This  ancient  doctrine 
had  its  origin  in  the  early  statutes  against  maintenance  and  cham- 
perty in  England,  the  last  of  which,  32  Henry  VIII.,  c.  9,  expressly 
prohibited  the  granting  or  taking  any  such  right  or  interest  under 
penalty,  both  on  the  grantor  and  the  buyer  or  taker,  of  forfeiting 
the  whole  value  of  the  land  or  interest  granted,  or,  as  Coke 
expesses  it,  "  the  grantor  and  grantee,  albeit  the  grant  be  merely 
void,  are  within  danger  of  the  statute."  Co.  Litt.  369  a.  The 
principle  that  a  mere  right  of  entry  into  land  is  not  the  subject  of  a 
valid  grant  has  been  fully  recognized  and  adopted  in  this  country  as 
a  settled  rule  of  the  law  of  real  property,  both  by  text  writers  and 
courts  of  justice.  2  Cruise  Dig.,  Greenl.  ed.,  tit.  xiii.,  c.  1,  §  15;  1 
Washburn  on  Real  Prop.  453;  2  lb.  599;  I.  Smith's  Lead.  Cas.  (5th 
ed.)  113;  Nicoll  v.  New  York  &*  Erie  Railroad,  2  Kernan  133; 
Williams  v.  Jackson,  5  Johns.  498;  Hooper  v.  Cummings,  45  Maine 
359;   Guild  v.  Richards,  16  Gray. 

The  effect  of  a  grant  of  a  right  or  possibility  of  reverter  of  an 
estate  on  condition  is  thus  stated  in  1  Shep.  Touchstone,  157,  15S: 
A  condition  "  may  be  discharged  by  matter  ex  post  facto;  as  in  the 


936    FUTURE  ESTATES  AND  INTERESTS  IN  LAND.    [PT.  IV.  CH.    VI. 

examples  following.  If  one  make  a  feoffment  in  fee  of  land  upon 
condition,  and  after,  and  before  the  condition  broken,  he  doth  make 
an  absolute  feoffment,  or  levy  a  fine  of  all  or  part  of  the  land,  to  the 
feoffee,  or  any  other;  by  this  the  condition  is  gone  and  discharged 
forever."  So  in  5  Vin.  Ab.  Condition,  (id.  11)  the  rule  is  said  to 
be,  "  when  condition  is  once  annexed  to  a  particular  estate,  and 
after  by  other  deed  the  reversion  is  granted  by  the  maker  of  the 
condition,  now  the  condition  is  gone."  See  also  1  Washburn  on 
Real  Prop.  453;  Hooper  v.  Cummings,  45  Maine,  359.  The  original 
maker  of  the  condition  cannot  enforce  it  after  he  has  parted  with 
his  right  of  reverter,  nor  can  his  alienee  take  advantage  of  a  breach, 
because  the  right  was  not  assignable.  In  the  light  of  these  princi- 
ples and  authorities,  it  would  seem  to  be  very  clear  that  the  original 
grantor  of  the  demanded  premises  destroyed  or  discharged  the  con- 
dition annexed  to  his  grant  to  the  defendants  by  aliening  the  estate 
in  his  lifetime  and  before  any  breach  of  the  condition  had  taken 
place. 

The  only  doubt  which  has  existed  in  our  minds  on  this  point  arises 
from  the  fact  that  the  son  and  heir  of  the  original  grantor  of  the 
premises  is  the  demandant  in  this  action.  But  on  consideration  we 
are  satisfied,  not  only  that  the  son  took  nothing  by  the  deed,  but 
also  that  the  possibility  of  reverter  was  extinguished  so  that  the 
original  grantor  had  no  right  of  entry  for  breach  after  his  deed  to 
his  son,  and  the  latter  can  make  no  valid  claim  to  the  demanded 
premises  either  as  grantee  or  as  heir  for  a  breach  of  the  condition 
attached  to  the  original  grant.  A  condition  in  a  grant  of  land  can 
be  reserved  only  to  the  grantor  and  his  heirs.  But  the  latter  can 
take  only  by  virtue  of  the  privity  which  exists  between  ancestor  and 
heir.  This  privity  is  essential  to  the  right  of  the  heir  to  enter.  But 
if  the  original  grantor  alienes  the  right  or  possibility  in  his  lifetime 
before  breach,  the  privity  between  him  and  his  heirs  as  to  the  pos- 
sibility of  reverter  is  broken.  No  one  can  claim  as  heir  until  the 
decease  of  the  grantor,  because  nemo  est  lucres  viventis;  and  upon 
his  death  his  heir  has  no  right  of  entry,  because  he  cannot  inherit 
that  which  his  ancestor  had  aliened  in  his  lifetime.  The  right  of 
entry  is  gone  forever.     Perkins,  §§  830-833;   Litt.,  §  347. 

It  may  be  suggested,  however,  that  if  the  deed  is  void  and  con- 
veys no  title  to  the  grantee,  the  right  of  entry  still  remains  in  the 
grantor  and  is  transmissible  to  his  heir.  This  argument  is  inconsist- 
ent with  the  authorities  already  cited,  which  sanction  the  doctrine 
that  alienation  by  a  grantor  of  an  estate  on  condition  before  breach 
extinguishes  the  condition;  it  also  loses  sight  of  the  principle  on 
h   tin    doctrine  rests.     The  policy  of  the  law  is  to  discourage 


IV.]  DESTRUCTION    OF   FUTURE   ESTATES.  937 

maintenance  and  champerty.  Neither  party  to  a  conveyance  which 
violates  the  rule  of  law  can  allege  his  own  unlawful  act  for  the  pur- 
pose of  securing  an  advantage  to  himself.  The  grantor  of  a  right 
of  entry  cannot  be  heard  to  say  that  his  deed  was  void,  and  that  the 
right  of  entry  still  remains  in  him,  because  this  would  be  to  allow 
him  to  set  up  his  own  turpitude  in  engaging  in  a  champertous  trans- 
action as  a  foundation  of  his  claim.  His  deed  is  therefore  effectual 
to  estop  him  from  setting  up  its  invalidity  as  the  ground  of  claiming 
a  right  of  entry  which  he  had  unlawfully  conveyed.  Nor  can  the 
grantee  avail  himself  of  the  grant  of  the  right  of  entry  for  a  like 
reason.  He  cannot  be  permitted  to  set  up  a  title  which  rests  upon 
a  conveyance  which  he  has  taken  in  contravention  of  the  rules  of 
the  law.  Both  parties  are  therefore  cut  off  from  claiming  any  bene- 
fit of  the  condition.  The  grantor  cannot  aver  the  invalidity  of  his 
own  deed,  nor  can  the  grantee  rely  on  its  validity.  Both  being  par- 
ticipators in  an  unlawful  transaction,  neither  can  avail  himself  of  it 
to  establish  a  title  in  a  court  of  law.  It  is  always  competent  for  a 
party  in  a  writ  of  entry  to  allege  that  a  deed,  under  which  an  adverse 
title  is  claimed,  although  duly  executed,  passed  no  title  to  the 
grantee,  either  because  the  grantor  was  disseised  at  the  time  of  its 
execution,  or  because  the  deed  for  some  other  reason  did  not  take 
effect.     Stearns  on  Real  Actions,  226. 

We  know  of  no  statute  which  has  changed  the  rules  of  the  com- 
mon law  in  this  commonwealth  in  relation  to  the  alienation  of  a 
right  of  entry  for  breach  of  a  condition  in  a  deed.  By  these  rules, 
without  considering  the  other  grounds  of  defense  insisted  upon  at 
the  trial,  it  is  apparent  that  the  demandant  cannot  recover  the 
demanded  premises;  not  as  heir,  because  he  did  not  inherit  that 
which  his  father  had  conveyed  in  his  lifetime;  nor  as  purchaser, 
because  his  deed  was  void. 

Exceptions  overruled. 


CHAPTER  VII. 
Joint  Ownership  of  Interests  in  Land. 
I.  Kinds  of  joint  interests  and  characteristics  of  each, 
i.  Estates  in  Joint  Tenancy. 

BABBITT  v.  DAY. 

41  New  Jersey  Equity,  392.  —  18S6. 

[Reported  herein  at  p.  6S5.]1 


HAUGHABAUGH  v.  HONALD. 

1  Constitutional  Court  (S.  C.;,  90.  —  1812. 

This  was  an  action  to  recover  a  moiety  of  100  acres,  originally 
granted  to  Anthony  Slack.  —  A.  S.  by  his  last  will, in  1761,  devised 
the  100  acres  to  his  wife  and  three  daughters,  and  their  heirs.  The 
widow  and  three  daughters  occupied  the  land  after  his  death;  after- 
wards the  widow  died  intestate;  then  one  of  the  daughters  died  an 
infant  and  unmarried.  The  two  surviving  daughters  married ;  one 
of  them  with  Mark  Honald;  the  other  with  John  Seastrunk.  Seas- 
trunk  and  Honald,  and  their  wives,  lived  on  the  same  tract,  and  a 
fence  divided  their  possessions.  In  1786  Mark  Honald's  wife  died, 
leaving  one  son,  David  Honald.  Mark  Honald  continued  in  posses- 
sion after  his  wife's  death,  married  a  second  wife,  and  died  in  the 
year  1795,  leaving  a  widow,  the  defendant,  Hannah  Honald,  who  has 
continued  in  possession  from  the  time  of  his  death.  John  Seastrunk 
and  his  wife  continued  in  possession  of  their  part  until  1798,  when 
they  conveyed  a  moiety  of  the  said  100  acres  to  one  John  Wain- 
wright;  which  moiety  they  describe  as  bounded  on  the  upper  side 
by  part  of  the  said  tract  held  by  the  heirs  of  Mark  Honald.  This 
de<  d  was  executed  by  the  wife  of  Seastrunk,  but  she  did  not  release 
her  inheritance.  John  Wainwright  conveyed  the  part  purchased  of 
trunk  to  the  plaint  ill".  David  Honald,  after  he  became  of  age, 
ey<  d  to  the  plaintiff  the  other  moiety. 

1  Aa  i"  1 1 1 « -  "  unities  "  needful   to  constitute  an  estate  in  "  joint  tenancy  "  see 
Spencer  v.  Austin,  \>.  944,  infra.       Ed. 

[938] 


I.   I.]  ESTATES    IN   JOINT-TENANCY.  939 

The  defendant  contended  that  at  the  death  of  the  wife  of  Mark 
Honald,  her  interest  survived  to  her  sister,  Mrs.  Seastrunk,  and 
that  nothing  passed  to  the  plaintiff  by  the  conveyance  of  David 
Honald. 

His  Honor  charged  the  jury  that,  on  the  death  of  Mrs.  Honald  her 
part  survived  to  Mrs.  Seastrunk,  her  sister;  and  no  estate  in  the 
land  descended  to  David  Honald,  the  lessor  of  the  plaintiff. 

Verdict  for  defendant.     Motion  for  a  new  trial. 

Colcock,  J.  —  It  is  conceded  that  the  daughters  of  Anthony 
Slack  held  as  joint  tenants.  The  only  question  then  is,  "  Was  there 
any  division  in  their  lives  of  the  property?  "  It  does  not  appear 
that  there  was  any  division,  or  any  act  of  the  parties,  which  the 
court  can  construe  into  a  severance  of  the  estate.  On  the  death  of 
Mrs.  Honald,  her  sister  took  the  whole  by  survivorship.  The  land 
did  not  descend  to  the  son,  and  therefore  he  had  no  right  to  convey 
to  the  plaintiff.  As  the  plaintiff  must  recover  on  the  strength  of 
his  own  title,  the  defendant's  need  not  be  inquired  into.  I  am  of 
opinion  the  motion  should  be  rejected. 

Brevard,  J. — The  plaintiff  must  recover  in  this  action  on  the 
strength  of  his  own  title,  and  not  on  the  weakness  of  his  adversary's. 
It  was  contended  for  the  plaintiff:  1st.  That  on  the  death  of  Mrs. 
Honald  in  1786,  the  estate  did  not  vest  in  Mrs.  Seastrunk,  by  sur- 
vivorship, for  that  the  act  of  Assembly  of  1748,  P.  L.  217,  takes 
away  the  right  of  survivorship.  2d.  That  the  evidence  given  in  the 
case  was  sufficient  to  prove  a  severance  of  the  joint  estate  before 
Mrs.  Honald's  death.  My  opinion  is  the  verdict  ought  to  stand. 
The  act  of  Assembly,  1748,  only  provides  an  easier  mode  for  obtain- 
ing partition  of  joint  estates;  but  does  not  change  their  nature  or 
properties.  The  jus  accrescendi  was  abolished  by  the  act  of  1791,  and 
not  before.  This  act  is  a  legislative  declaration  of  what  the  law  was 
before  that  time.  On  the  death  of  Mrs.  Honald,  in  1786,  the  whole 
estate  vested  in  her  sister,  unless  the  joint  tenancy  had  been  severed 
in  her  life.  If  there  was  clear  proof,  or  even  such  evidence  as  would 
amount  to  a  strong  probability,  of  a  severance  between  the  joint 
tenants,  by  agreement;  or,  by  a  bargain  and  sale  of  Mrs.  Seas- 
trunk's  moiety,  which  would  operate  a  severance,  before  Mrs.  Hon- 
ald's death,  my  opinion  would  be  different.  A  parol  agreement  and 
partition  was  good  at  common  law,  Co.  Lit.  165,  171;  and  notwith- 
standing the  statute  of  frauds,  such  a  partition  may  be  valid,  if  the 
line  be  sufficiently  marked  on  the  ground,  and  manifested  by  a  sep- 
arate distinct  possession  for  a  sufficient  length  of  time.  1  Binney, 
216.     The  evidence  in  this  case  was  too  vague  and  slight  to  found 


94-0    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

a  presumption  of  a  legal  and  valid  partition,  even  by  parol.  There 
was  no  evidence  of  agreement  to  divide.  The  joint  tenants  were 
both  married  women,  and  would  not  be  bound  by  any  agreement 
made  by  their  husbands,  unless  their  consent  was  obtained  agreeably 
to  law.  The  evidence  of  a  separate  possession  was  too  loose  to 
afford  any  solid  ground  to  presume  a  partition.  This  evidence  con- 
sists chiefly  of  proof  that  Mark  Honald  was  in  possession  of  a  part 
until  his  death;  and  that  in  1798  John  Seastrunk  and  his  wife  con- 
veyed to  John  Wainwright  a  moiety  of  the  tract;  and  the  convey- 
ance in  describing  the  land  states  that  it  is  bounded  on  the  upper 
side  by  part  of  the  said  tract  held  by  the  heirs  of  Mark  Honald. 
Mrs.  Seastrunk  is  joined  in  this  deed,  but  there  is  no  renunciation 
of  her  inheritance.  The  argument  drawn  from  the  language  of  this 
deed  in  the  description  of  the  premises  has  no  weight.  It  cannot 
by  intendment  and  implication  divest  Mrs.  Seastrunk  of  her  inherit- 
ance. For  anything  that  appears  to  the  Court,  she  has  never  con- 
sented to  part  from  her  estate.  The  deed  could  not  estop  her,  even 
if  it  were  more  explicit  than  it  is.     *     *     * 

Since,  therefore,  there  is  no  will,  no  proof  whatever  of  partition, 
agreeably  to  the  act  of  1748,  and  the  primogeniture  act  does  not 
apply,  it  follows  that  Mrs.  Seastrunk  took  the  whole  estate  by  sur- 
vivorship, and  nothing  passed  to  the  plaintiff  by  the  deed  of  David 

Honald. 

Motion  refused. 


THORNBURG  v.  WIGGINS. 

135  Indiana,  178.  —  1893. 


Dailey,  J.  —  This  was  an  action  instituted  in  the  court  balow,  in 
two  paragraphs,  in  the  first  of  which  appellees  allege,  in  substance, 
that  on  and  before  December  15,  1884,  one  Lemuel  Wiggins  was  the 
owner  of  a  certain  tract  of  real  estate  therein  described,  containing 
eighty  acres;  that  on  said  day  said  Lemuel  and  his  wife,  Mary, 
executed  and  delivered  to  the  appellees  [Wiggins  and  wife]  a  war- 
ranty deed,  conveying  to  them  the  fee-simple  of  said  real  estate; 
that  at  the  time  of  said  conveyan.ce  the  appellees  were,  ever  since 
have  been,  and  now  are,  husband  and  wife;  that  said  deed  conveyed 
to  the  appellees  the  title  to  said  real  estate  which  they  took  and 
accepted,  ever  since  have  held,  and  now  hold  by  entireties  and  not 
otherwise;  that  appellees  hold  their  title  to  said  real  estate  by  said 
deed  of  Lemuel  Wiggins,  anil  not  otherwise;  that  on  the  24th  "  day 
of   April,    1X77,    Isaac    K.    Howard  and   Isaac   N.    Gaston,  who   were 


I.  i.]  ESTATES    IN   JOINT-TENANCY.  94I 

defendants  below,  recovered  a  judgment  in  the  Randolph  Circuit 
Court  for  the  sum  of  $403.70  and  costs,  against  one  John  T.  Bur- 
roughs and  the  appellee,  Daniel  S.  Wiggins,  as  partners,  doing  busi- 
ness under  the  firm  name  of  Burroughs  &  Wiggins;  that  on  May  12, 
1886,  said  Howard  and  Gaston  caused  an  execution  to  be  issued  on 
said  judgment  and  placed  in  the  hands  of  the  appellant,  Thornburg, 
as  sheriff  of  said  county,  and  directed  him  to  levy  the  same  on  said 
real  estate,  and  that  said  sheriff  did,  on  the  25th  day  of  May,  1886, 
levy  said  execution  on  said  real  estate,  or  on  the  one-half  interest  in 
value  thereof,  taken  as  the  property  of  said  appellee,  Daniel  S.  Wig- 
gins, to  satisfy  said  writ ;  that  pursuant  to  the  levy  thereof  said  sheriff 
proceeded  by  the  direction  of  said  Howard  and  Gaston  to  advertise 
said  real  estate  for  sale  under  said  execution  and  levy  to  make  said 
debt,  and  did,  on  the  8th  day  of  June,  advertise  the  same  for  sale 
on  the  3d  day  of  July,  1886,  and  will,  on  said  day,  sell  the  same, 
unless  restrained  and  enjoined  from  so  doing  by  the  court;  that  said 
Daniel  S.  Wiggins  has  no  interest  in  said  premises,  subject  to  sale 
thereon;  that  the  appellees  hold  the  title  thereto  as  tenants  by 
entireties  and  not  otherwise;  that  the  sale  of  said  tract  on  said  exe- 
cution would  cast  a  cloud  on  the  appellee's  title,"  etc. 

The  second  paragraph  is  the  same  as  the  first,  in  substantial  aver- 
ments, except  that  in  this  paragraph  the  appellees  set  out  as  a  part 
thereof  a  copy  of  the  deed  under  which  they  claim  title  to  said  real 
estate  as  such  tenants  by  entireties. 

The  granting  clause  of  the  deed  is  as  follows:  "  This  indenture 
witnesseth,  that  Lemuel  Wiggins  and  Mary  Wiggins,  his  wife  of 
Randolph  County,  in  the  State  of  Indiana,  convey  and  warrant  to 
Daniel  S.  Wiggins  and  Laura  Belle  Wiggins,  his  wife,  in  joint  ten- 
ancy," etc. 

Appellants  separately  and  severally  demurred  to  each  paragraph 
of  the  complaint,  and  their  demurrers  were  overruled  by  the  court, 
to  which  the  appellants  excepted,  and,  refusing  to  answer  the  com- 
plaint, judgment  was  rendered  in  favor  of  appellees  on  said  demur- 
rers. 

Appellants  appeal,  assigning  as  errors  the  overruling  of  said 
demurrers,  and  urge  that  the  appellees  under  the  deed  took  as  joint 
tenants,  and  hence  that  the  husband's  interest  is  subject  to  levy  and 
sale  upon  execution.  A  joint  tenancy  is  an  estate  held  by  two  or 
more  persons  jointly,  so  that  during  the  lives  of  all  they  are  equally 
entitled  to  the  enjoyment  of  the  land  or  its  equivalent  in  rents  and 
profits,  but,  upon  the  death  of  one  his  share  vests  in  the  survivor 
or  survivors  until  there  be  but  one  survivor,  when  the  estate  becomes 
one  in  severalty  in  him  and  descends   to  his   heirs  upon  his  death. 


94-     JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.     [PT.  IV.  CII.  VII. 

It  must  always  arise  by  purchase,  and  cannot  be  created  by  descent. 
Such  estates  may  be  created  in  fee,  for  life,  for  years,  or  even  in 
remainder.  But  the  estate  held  by  each  tenant  must  be  alike. 
Joint  tenancy  may  be  destroyed  by  anything  which  destroys  the 
unity  of  title.  Our  law  aims  to  prevent  their  creation  and  they  can- 
not arise,  except  by  the  instrument  providing  for  such  tenancy. 
Griffin  v.  Lynch,  16  Ind.  396. 

The  9th  Am.  and  Eng.  Encyc.  of  Law,  850,  says:  "  Husband  and 
wife  are,  at  common  law,  one  person,  so  that  when  realty  or  per- 
sonalty vests  in  them  both  equally  .  .  .  they  take  as  one  per- 
son, they  take  but  one  estate  as  a  corporation  would  take.  In  the 
case  of  realty,  they  are  seized  wot  per  my  et  per  tout,  as  joint  tenants 
are,  but  simply/*?/-  tout;  both  are  seized  of  the  whole,  and  each 
being  seized  of  the  entirety,  they  are  called  tenants  by  the  entirety, 
and  the  estate  is  an  estate  by  entireties.  .  .  .  Estates  by 
entireties  may  be  created  by  will,  by  instrument  of  gift  or  purchase, 
and  even  by  inheritance.  Each  tenant  is  seized  of  the  whole,  the 
estate  is  inseverable  —  cannot  be  partitioned;  neither  husband  nor 
wife  can  alone  affect  the  inheritance,  the  survivor's  right  to  the 
whole." 

This  tenancy  has  been  spoken  of  as  "  that  peculiar  estate  which 
arises  upon  the  conveyance  of  lands  to  two  persons  who  are,  at  the 
time,  husband  and  wife,  commonly  called  estates  by  entirety."  As 
to  the  general  features  of  estates  by  entireties  there  is  little  room 
for  controversy,  and  there  is  none  between  counsel.  Our  statute 
re-enacts  the  common  law.  Arnolds.  Arnold,  30  Ind.  305;  Davis  v. 
Clark,  26  Ind.  424.     *     *     * 

Where  a  contrary  intention  is  clearly  expressed  in  the  deed,  a 
different  rule  obtains. 

"  A  husband  and  wife  may  take  real  estate  as  joint  tenants  or 
tenants  in  common,  if  the  instrument  creating  the  title  use  apt 
words  for  the  purpose."  1  Preston  on  Estates,  132;  2  Blackstone's 
Com.,  Sharswood's  note;  4  Kent's  Com.,  side  page  363;  1  Bishop 
on  Married  Women;  Freeman  on  Cotenancy,  §  72;  Fladung  v. 
Rose,  58  Md.  13  (24). 

And  in  case  of  devises  and  conveyances  to  husband  and  wife 
together,  though  it  has  been  said  that  they  can  take  only  as  tenants 
by  entireties,  the  prevailing  rule  is  that,  if  the  instrument  expressly 
so  provides,  they  may  take  as  joint  tenants  or  tenants  in  common." 
Stewart  on  Husband  and  Wife,  §§  307-310;  Tiedeman  on  Real  Prop- 
erty, §  244. 

"  And  as  by  common  law  it  was  competent  to  make  husband  and 
wife  tenants  in  common   by  proper  words   in   the  deed  or  devise," 


I.   i.]  ESTATES    IN   JOINT-TENANCY.  943 

etc.  Hoffman  v.  Stigers,  28  la.  310;  Brown  v.  Brown,  32  N.  E. 
Rep.   1128. 

So  it  seems  that  husband  and  wife  may,  by  express  words,  be 
made  tenants  in  common  by  gift  to  them  during  coverture.  Mc- 
Dermott  v.  French,   15  N.  J.  Eq.  80.     *     *     * 

If,  as  contended  by  appellees,  the  rule  prevails  that  the  same  words 
which,  if  the  grantees  were  unmarried,  would  have  constituted  them 
joint  tenants,  will,  they  being  husband  and  wife,  make  them  tenants 
by  entireties,  then  it  would  result  as  a  logical  conclusion  that  hus- 
band and  wife  cannot  be  joint  tenants.  Because,  by  this  rule, 
words,  however  apt  or  appropriate  to  create  a  joint  tenancy,  would, 
in  a  conveyance  to  husband  and  wife,  result  in  an  estate  by  entireties 
—  joint  tenancy  would  be  superseded  or  put  in  abeyance  by  the 
estate  created  by  law  — tenancy  by  entirety. 

The  result  of  such  reasoning  would  be  to  destroy  the  contractual 
power  of  the  parties  where  this  relationship  between  the  grantees  is 
shown  to  exist.  Any  other  process  of  reasoning  would  carry  the 
rule  too  far  and.  we  must  hold  it  modified  to  the  extent  here  indi- 
cated. Husband  and  wife,  notwithstanding  tenancies  by  entirety 
exist  as  they  did  under  the  common  law,  may  take  and  hold  lands 
for  life,  in  joint  tenancy,  or  in  common,  if  appropriate  language  be 
expressed  in  the  deed  or  will  creating  it,  and  we  know  of  no  more 
apt  terms  to  create  a  joint  tenancy  in  the  grantees  in  this  estate 
than  the  expression  "  convey  and  warrant  to  Daniel  S.  Wiggins  and 
Laura  Belle  Wiggins  in  joint  tenancy." 

These  words  appear  in  the  granting  clause  of  the  deed  conveying 
the  land  in  question,  and  the  estate  accepted  and  held  by  the 
grantees  is  thereby  limited,  and  they  hold  not  by  entireties  but  in 
joint  tenancy.  A  joint  tenant's  interest  in  property  is  subject  to 
execution.     Freeman  on  Ex.,  125. 

Judgment  reversed,  with  instructions  to  the  Circuit  Court  to  sus- 
tain the  demurrer  to  each  paragraph  of  the  complaint. 


CAMPBELL  v.  HERRON. 
1  Conference  Reports  (N.  C),  291.  —  1801. 
[Reported  herein  at  p.  947.] 


944    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [FT.  IV.  CH.  VII. 

2.  Estates  in  Common. 

SPENCER  v.  AUSTIN. 

3S  Vermont,  25S.  —  1865. 

Bill  in  chancery  to  ascertain  the  interests  of  the  several  parties 
in  the  premises  in  question.  In  1830  Gideon  and  Stephen  Spen- 
cer, owning  the  lands  in  common,  by  joint  lease  demised  the  lands 
to  one  Ward,  reserving  an  annual  rent  of  $800.  The  lease  con- 
tained a  clause  for  re-entry  in  case  of  non-payment  of  rent.  In  1833 
Stephen  Spencer  transferred  to  Apollos  Austin  all  his  right  in  the 
lands  and  rents.  In  1836  Ward  transferred  his  rights  under  the 
lease  in  one  undivided  moiety  of  the  same  land  to  Austin.  Gideon 
Spencer  died  in   1847. 

Wilson,  J.  — The  orators  seek  to  charge  the  whole  land  with  the 
payment  of  the  rent  due  to  them  as  the  assignees  and  representa- 
tives of  Gideon  Spencer,  and  whether  they  are  entitled  to  the  relief 
sought  for  depends  upon  the  original  rights  of  Gideon  and  Stephen 
Spencer  as  tenants  in  common  of  the  land  sought  to  be  charged,  and 
upon  the  legal  effect  of  the  several  conveyances  under  which  these 
parties  respectively  claim  title  to  the  premises.  Gideon  and  Stephen 
Spencer  were,  at  the  date  of  the  lease  to  Ward,  tenants  in  common 
of  the  land  conveyed.  "  The  only  unity  required  between  tenants 
in  common  is  that  of  possession,  for  one  tenant  may  hold  his  part  in 
fee  simple,  the  other  in  tail  or  for  life;  so  that  there  is  no  unity  of 
interest.  One  may  hold  by  descent,  the  other  by  purchase;  so  that 
there  is  no  unity  of  title.  One  estate  may  have  been  vested  fifty 
years,  the  other  but  yesterday;  so  that  there  is  no  unity  of  time." 
Litt.,  §  292;  1  Inst.  190;  Cr.  Dig.  B.  2,  tit  20;  2  Black.  Com.  191. 
"  Joint  tenants  have  one  and  the  same  interest,  accruing  by  one  and 
the  same  conveyance,  commencing  at  one  and  the  same  time,  and 
held  by  one  and  the  same  undivided  possession."  Black.  Com.  146. 
And  among  the  incidents  attending  a  joint  tenancy  is  the  doctrine  or 
right  of  survivorship  which  does  not  exist  in  tenancy  in  common. 
The  ancient  English  law  was  apt  in  its  constructions  of  conveyances 
to  favor  joint  tenancy  rather  than  tenancy  in  common;  but  joint 
tenancies,  for  a  long  period  of  time,  have  been  and  still  are  regarded 
with  so  little  favor  in  England  and  in  this  country,  both  in  courts  of 
law  and  equity,  that  whenever  the  expressions  will  import  an  inten- 
tion in  favor  of  a  tenancy  in  common,  such  effect  will  be  given  to 
them.  Our  legislature,  for  the  purpose  of  protecting  the  several 
interests  of  persons  in  the  same  land,  and  guarding  them  against 
the  incidents  attending  a  joint  tenancy  and  the  injustice  which  might 


I.   2.]  ESTATES   IN   COMMON.  945 

resuit  therefrom,  has  declared  that  all  conveyances  and  devises  of 
lands  made  to  two  or  more  persons,  except  conveyances  and  devises 
made  in  trust,  or  made  to  husband  or  wife,  shall  be  construed  to 
create  estates  in  common,  and  not  in  joint  tenancy,  unless  it  shall 
be  expressed  therein  that  the  grantees  or  devisees  shall  take  the 
lands  jointly,  or  as  joint  tenants,  or  in  joint  tenancy,  or  to  them  and 
the  survivor  of  them  or  unless  it  shall  manifestly  appear  from  the 
tenor  of  the  instrument  that  it  was  intended  to  create  an  estate  in 
joint  tenancy.  G.  S.,  c.  64,  §§  2  and  3.1  The  reason  of  the  rule 
which  protects  the  title  and  several  interests  of  tenants  in  common, 
while  they  jointly  possess  the  estate,  each  under  his  own  absolute 
title  to  a  moiety  of  the  lands,  may  exist  in  case  of  a  joint  convey- 
ance by  them,  of  part  of  their  interest  in  the  premises,  and  upon 
principle  the  rule  should  extend  to  and  protect  their  reserved  rights 
in  the  estate  under  such  conveyance,  and  preserve  them  in  severalty, 
so  long  as  such  relation  exists,  either  in  respect  to  the  proceeds  of 
the  estate,  or  in  respect  to  their  reserved  rights  in  the  estate,  unless 
the  conveyance  contain  some  express  provision  to  the  contrary. 
The  principal  incidents  then  attending  a  tenancy  in  common  being 
such  as  merely  arise  from  the  unity  of  possession,  it  follows  that 
one  tenant  in  common  may  convey  his  estate  without  the  other,  and 
resume  it  at  any  time,  or  they  may  unite  in  a  common  conveyance 
of  their  respective  estates,  without  necessarily  intermingling  or 
prejudicing  their  separate  rights  or  interests. 

The  two  Spencers,  holding  by  separate  and  independent  titles,  in 
1830,  by  their  joint  deed,  made  the  lease  to  Ward,  reserving  an 
annual  rent  of  $800.  The  lease  among  other  stipulations  contained 
a  clause  of  re-entry  in  case  of  non  payment  of  the  rent.  The  rent 
was  made  payable  in  gross,  but  it  belonged  to  each  separately,  in 
equal  moieties,  as  tenants  in  common,  in  the  same  right  as  that  in 
which  they  had  held  the  land.  By  the  terms  of  the  lease  neither 
Spencer  released  to  the  other  any  right  to  or  interest  in  his  moiety 
of  the  estate,  nor  in  his  security  upon  such  moiety  for  his  share  of 
the  rent.  The  joint  lease  of  Spencers  to  Ward  did  not  in  any  man- 
ner affect  their  reserved  rights  as  tenants  in  common.  They  were 
the  same  as  if  the  lease  to  Ward  had  been  made  by  two  separate 
deeds  of  the  Spencers,  each  of  his  own  moiety,  reserving  rent,  and 
a  right  of  re-entry  for  condition  broken.  The  lease  gave  neither  of 
them  any  estate  in,  or  control  over  the  title  or  part  of  the  other. 
Their  reserved  estate  in  the  land  was,  in  effect,  several,  their  right 
to  the  rent  several,  and  their   right  of  re-etry  for  condition  broken 

1  For  New  York  see  the  R.  P.  L.  §  56.  —  Ed. 

LAW   OF  PROP.  IN  LAND  —  66 


946    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CII.  VII. 

was  several.  And  "  where  a  person  enters  for  condition  broken  the 
estate  becomes  void  ab  initio,  and  the  person  who  enters  is  again 
seised  of  his  original  estate  in  the  same  manner  as  if  he  had  never 
conveyed  it  away."  Lit.,  §  325;  1  Inst.  202  a;  Cruise's  Dig.  B.  2, 
tit.  Condition.  Stephen  Spencer  in  1833  conveyed  his  interest  in 
the  premises  to  Apollos  Austin.  He  conveyed  to  Austin  his  moiety 
of  the  rent  due  and  growing  due,  and  his  moiety  of  the  land 
charged  only  with  the  payment  of  his  part  of  the  rent;  by  which 
Austin  succeeded  to  the  title  and  rights  of  Stephen  Spencer  which 
were  co-extensive  with  the  rights  of  Gideon  Spencer.  In  1836 
Ward  assigned  his  interest  in  one  undivided  moiety  of  the  same  land 
to  Austin,  by  which  Austin  became  seised  of  all  the  right  and  title 
to  the  moiety  owned  by  Stephen  Spencer  at  the  time  the  lease  was 
made  by  the  Spencers  to  Ward.  It  is  urged  by  the  orators  that  the 
assignment  from  the  lessor  Stephen  Spencer  of  one-half  of  the 
lessor's  interest  in  the  premises,  and  the  conveyance  from  Ward  of 
one-half  of  the  lessee's  interest,  operated  as  a  merger  of  these 
estates  in  Apollos  Austin  and  vested  in  him  the  title  to  one  undivided 
half,  in  fee.  It  is  true  that  those  conveyances  vested  in  Apollos 
Austin  the  title  to  one  undivided  half  of  the  premises,  but  it  did  not 
necessarily  follow  that  the  conveyances  operated  as  a  merger  of 
those  estates  in  Austin,  so  far  as  to  extinguish  his  rights  under  the 
lease.  The  question  is  upon  the  intent  of  Austin,  in  whom  the 
interests  were  united;  and  it  appears  to  us  that  there  could  have 
been  no  intention  to  create  a  merger  of  the  estates.  In  Walker, 
Smith  &•  Co.  v.  Barker  and  Fletcher,  26  Vt.  710,  it  was  held  that  the 
estates  when  united  will  not  be  treated  as  merged,  so  as  to  operate 
as  payment  or  extinguishment  of  the  debt,  unless  such  was  the  evident 
intention  of  the  parties,  nor  will  that  result  follow  if  there  exists 
some  beneficial  interest  that  should  be  protected,  and  where  it  is  for 
the  benefit  of  the  party  to  keep  the  legal  and  equitable  interests  sep- 
arate and  distinct.  And  in  the  case  of  Forbes  v.  Moffat,  18  Vesey 
384,  the  rule  was  recognized  that  the  whole  question  rests  upon  an 
expressed  or  presumed  intention  of  the  parties,  and  that  the  debt  will 
be  treated  as  paid  and  satisfied  when  it  is  evident  that  the  estates 
were  united  with  a  view  to  satisfy  the  debt,  otherwise  it  will  have  no 
such  effect;  and  such  is  the  rule  both  at  law  and  in  equity.  Under  the 
circumstances  we  think  the  case  stands  the  same  as  if  Stephen 
u  r  had  become  the  assignee  of  Ward.  The  two  estates,  viz.: 
that  of  Stephen  Spencer  reserved  in  the  lease,  and  that  of  Wrard  in 
Stephen  Spencer's  moiety  of  the  land,  were  united  in  Apollos  Austin 
and  he  became  the  owner  of  the  moiety  of  Stephen  Spencer  and  a 
tenant  in  common  with    Gideon    Spencer  with  all    the  right   of  prop- 


I.  3.]  ESTATES   IN   COPARCENARY.  947 

erty  vested  in  him  that  was  vested  in  Stephen  Spencer  at  the  date 
of  the  lease.  The  right  of  Austin  to  the  rent  in  arrear  was  not  sat- 
isfied by  the  union  of  the  two  estates;  he  still  had  a  right  to  enjoy 
his  moiety  of  the  land,  as  well  for  the  rent  in  arrear  as  for  the 
accruing  rent.  Gideon  Spencer,  at  the  time  of  the  execution  of  the 
lease  by  him  and  his  co-tenant  Stephen  Spencer  to  Ward,  had  no 
title  to  or  interest  in  Stephen  Spencer's  moiety  of  the  premises;  he 
derived  none  from  the  joint  lease  to  Ward,  nor  from  the  subsequent 
assignment  and  conveyance  by  which  Austin  became  the  owner  of 
Stephen  Spencer's  moiety  of  the  premises;  and  it  is  clear  that 
Austin  is  entitled  to  the  free  use  and  profits  of  his  moiety  of  the 
lands,  and  to  an  equal  lien  and  charge  for  the  Stephen  Spencer 
rents,  upon  the  property  in  the  same  manner  and  to  the  same  extent 
as  the  orators.  We  are  entirely  satisfied  with  the  result,  for  it 
appears  to  be  in  accordance  with  the  intention  and  understanding 
of  the  parties  as  disclosed  by  the  testimony  in  the  case.  It  is  not 
reasonable  to  suppose  that  the  Spencers,  by  uniting  in  the  execution 
of  the  lease  to  Ward,  intended  to  affect  their  separate  rights  in  the 
estate,  or  the  rights  of  their  grantees,  nor  will  equity  allow  the 
orators  to  extend  their  security  over  the  whole  land  when  so  mani- 
festly contrary  to  the  intention  of  the  parties.     *     *     * 

The  decree  of  the  chancellor,  by  which  the  orator's  bill  was  dis- 
missed, is  affirmed  with  costs  to  the  defendants.     *     *     * 


3.   Estates  in  Coparcenary. 

CAMPBELL  v.  HERRON. 

1  Conference  Reports  (N.  C),  291.  —  1801. 

The  will  of  Rufus  Mersden  gave  to  his  wife  the  use  of  certain 
lands  for  life  and  after  her  death  to  the  use  of  his  "  three  daughters, 
namely,  Hannah,  Alice  and  Peggy,  and  to  their  heirs,  executors, 
administrators  and  assigns  forever,  and  to  no  other  use  or  uses 
whatever."  Hannah  married  and  both  she  and  her  husband  died 
before  the  widow,  leaving  a  child,  Alice,  one  of  the  complainants 
herein.  The  widow  died  in  1758,  leaving  her  daughters,  Alice  and 
Peggy,  and  her  grandaughter  Alice  surviving.  Peggy  married  in 
1785,  and  is  now  deceased,  leaving  her  husband  and  a  son,  both  of 
whom  are  defendants  herein.  The  daughter  Alice  and  John  Lorden, 
husband  of  Peggy,  are  in  possession  of  the  land.  Complainant 
claims  one-third  part  of  the  premises  and  an  account  of  the  profits 
accrued  since  the  death  of  the  life  tenant.      Defendant  demurred  on 


948    JOINT  OWNERSHIP  OF"  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

the  ground  that  the  daughters  were  joint  tenants  and  that  therefore 
complainant  has  no  claim  to  a  share  of  the  land.  If  they  took  as 
co-parceners  or  tenants  in  common,  complainants  could   succeed. 

By  the  Court. — It  is  not  doubted  but  that  if  a  person  devises 
land  to  one  who  is  his  next  heir,  and  his  heirs,  the  devise  is  void, 
and  the  heir  shall  take  by  descent;  or  if  a  testator  devise  that  his 
lands  shall  descend  to  his  son,  the  devise  is  void,  and  the  devisee 
shall  be  in  by  descent.  Powell  on  Devises,  427,  428,  and  the 
authorities  there  cited.  1st.  Because  it  was  for  the  benefit  of  cred- 
itors. 2d.  Because  the  lord  would  have  been  defrauded  of  the  fruits 
of  his  seigniory,  the  consequence  of  descent.  But  wherever  the 
devise  makes  an  alteration  of  the  limitation  of  the  estate,  from  that 
which  takes  place  in  the  case  of  descent,  then  the  principle  ceases 
to  operate,  and  the  heir  takes  by  purchase.  Pow.  Dev.  439.  In 
the  present  case,  if  the  lands,  etc.,  had  descended  to  the  three 
daughters,  they  would  have  taken  as  coparceners.  Survivorship 
therefore  never  could  have  taken  place  between  them.  But  the  tes- 
tator, after  giving  a  life-estate  to  his  wife  in  the  premises,  gives, 
grants,  etc.,  the  use  of  them  to  his  three  daughters,  named  Hannah, 
Alice  and  Peggy,  and  to  no  other  use  or  uses  whatsoever. 

It  is  admitted  that  the  words  made  use  of  in  this  devise,  in  feudal 

times,  would  have  created  an  estate  in  joint  tenancy  —  the  reason 

assigned  why  joint  tenancies  were  favored  in  those  times  is  that  it 

prevented  a  multiplication   of  tenures.      But  it  is  said  that  as  the 

feudal  tenures  wore  off  this  rule  has  been  gradually  departed  from 

—  that  the  intent,  and  not  the  words,  should  form  the  rule  of  decision. 

It  is  true  that  joint  tenancies  are  less  and  tenancies  in   common  are 

more  favored  than  they  anciently  were,  particularly  where  a  father 

is  making  provision  for  his  children,  and  makes  use  of  any  words, 

which   a  court  can  properly  lay  hold  of  and  make  instrumental  for 

that  purpose.      1  P.  W.  14,  2  Atk.  122;  Cowp.  660,    2  Ves.  252,  256; 

3  Atk.  731.     But  every  one  of  the  cases  proves  that  an  estate  created 

by  the  same  words  that  are  made  use   of  in  the  present  instance 

must  be  a  joint  tenancy.     The  ground  of  decision  in  every  one   of 

.  was  particular  words  made  use  of,  from  which  the  court  col- 

le<  ted  an  intent  in  the  devisor  to  create  a  tenancy  in  common;  such 

1  equally  to  be  divided,  etc.,"  "  respectively,  etc."    But  we  know 

i-n  in  a  will,  or  in  deeds    which  derive  their  operation 

from  '  le     tatute  of  uses,  where  the  same  or  similar  words  are  not 

made  use  of,  that  a  similar  determination  has  taken  place;  so  that 

are    rather  exceptions  to   the   general    rule;  and   as  no 

are  made  use  of  here  that  can  bring  the  case  within  any  of  the 

ex<  1  ptions,  it  must  be  considered  a  joint  tenancy. 


I.  3.]  ESTATES   IN   COPARCENARY.  949 

Can  it  be  presumed,  in  the  case  of  Regden  v.  Val/iers,  as  reported 
in  2  Ves.  252,  and  3  Atk.  731,  above  cited,  that  Lord  Hardwicke 
would  have  made  the  same  determination,  had  the  words  "  equally 
to  be  divided  between  them  "  not  have  been  made  use  of  in  this 
deed?  Or  would  his  reasoning  have  been  applicable  to  the  case  had 
these  words  been  omitted?  Although  the  reasons  that  formerly- 
favored  joint  tenancy  do  not  hold  now  so  strong  as  formerly,  yet 
the  rules  to  which  they  gave  rise  in  many  respects  exist  (Pow.  Dev. 
355),  although  frequently  inconveniencies  are  felt  from  them.  We 
therefore  think  that  the  words  made  use  of  in  this  devise  create  a 
joint  tenancy,  there  being  no  particular  circumstance  or  words  in  it 
from  which  an  intent  can  be  collected  that  the  testator  meant  to 
convey  a  tenancy  in  common.  Pow.  Dev.  439;  Cro.  Eliz.  431;  2 
Vern.  545;  3  Lev.  127,  128;  Co.  Litt.  1S9;   1  Lev.  112. 


GILPIN  v.  HOLLINGSWORTH. 

3  Maryland,  190.  —  1S52. 

Ejectment  to  recover  an  undivided  third  part  of  certain  lands. 
The  question  involved  arises  under  the  will  of  Henry  Hollingsworth, 
the  material  part  of  which  is  set  forth  in  the  opinion.  Hollingsworth 
left  two  children  by  his  first  and  four  by  his  second  wife.  These  six 
children  partitioned  the  land  amongst  themselves  by  mutual  deeds  and 
the  parcel  in  question  was  allotted  to  Anne,  one  of  the  second  wife's 
children.  Anne  died  seised,  intestate  and  without  issue.  Her  half- 
sister,  Mary,  her  sister  of  the  whole  blood,  Elizabeth,  and  children 
of  another  sister  of  the  whole  blood  survived  her.  The  plaintiffs 
are  the  heirs-at-law  of  Mary,  who  died  after  Anne's  decease,  and  they 
claim  an  undivided  third  as  against  Anne's  relations  of  the  whole 
blood,  who  are  defendants. 

Tuck,  J.,  delivered  the  opinion  of  this  court. 

The  will  of  Henry  Hollingsworth  contained  the  following  clause: 
"  All  the  rest  and  residue  of  my  estate,  real,  personal  or  mixed, 
whatsoever  or  wheresoever,  I  give,  devise  and  bequeath,  to  be 
divided  amongst  all  my  children,  in  equal  shares  and  portions,  to 
them,  their  heirs  and  assigns,  forever."  He  left  children  of  the 
whole  and  of  the  half  blood.  If  his  children  took  by  descent,  and 
not  by  purchase,  the  plaintiffs  are  entitled  to  recover,  being  of  the 
half  blood;  if,  on  the  contrary,  the  property  passed  by  the  will,  the 
defendants,  being  of  the  whole  blood,  must  succeed. 

"  Where  the  same  quantity  and  quality  of  estate  is  devised,  that 


950    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.   CH.  VII. 

the  devisee  would  have  acquired  by  descent,  the  title  passes  by  the 
worthier  title  —  by  descent,  and  not  by  purchase."  7  Gill  & 
Johns.  70;  2  Hilliard  on  Real  Prop.  528,  529.  The  only  inquiry, 
then,  would  seem  to  be  whether  these  devisees  took  the  same  estate 
as  if  their  father  had  died  intestate?  Estates  in  joint-tenancy, 
coparcenary,  and  in  common,  are  different  from  each  other.  We 
need  not  mention  the  well-recognized  distinctions.  It  may  be  con- 
ceded, as  contended  in  argument,  that  for  most  practical  purposes 
in  this  country,  there  is  no  real  difference  between  coparceners  and 
tenants  in  common,  yet  they  are  different  as  legal  estates,  and  their 
qualities  and  incidents  are  not  the  same.  Tenancies  in  common  and 
joint  tenancies  are  recognized  by  the  act  of  1822,  ch.  162;  and 
estates  in  coparcenary  by  the  Court  of  Appeals  in  the  case  of  Hoffar 
v.  Dement,  5  Gill,  132,  where  it  is  said:  "  In  Maryland  the  children 
of  parents  who  die  intestate,  seized  in  fee  in  lands,  etc.,  take  as 
coparceners,  and  are  so  treated  by  the  act  of  1820,  ch.  191,  sec.  5." 
The  same  principle  applies  to  persons  inheriting  in  virtue  of  the  act 
of  1786,  ch.  45.  They  all  constitute  but  one  heir.  Suppose,  instead 
of  the  words  employed  in  this  clause,  the  will  had  devised  this  residue 
to  the  children,  as  tenants  in  common,  can  it  be  doubted  that  they 
would  have  taken  as  devisees,  and  not  as  heirs-at-law?  3  Anstr. 
727.  These  words  are  not  used,  but  terms  of  the  same  import  are. 
In  wills  the  expressions,  "  equally  to  be  divided,"  "  share  and  share 
alike,"  "  respectively  between  and  amongst  them,"  have  been  held 
to  create  a  tenancy  in  common.  2  Bl.  Com.,  ch.  12,  note  by  Chitty, 
and  in  2  Powell  on  Devises,  ch.  18,  pages  370,  371,  it  is  said:  "  It 
may  be  stated  generally  that  all  expressions  importing  division  by 
equal  or  unequal  shares,  or  referring  to  the  devisees  as  owners  of 
respective  or  distinct  interests,  and  even  words  simply  denoting 
equality,  will  have  this  effect."  He  also  states  several  examples 
and  references.  We  are  referred  to  4  Kent  Com.  367,  as  an  authority 
to  show  that  in  this  country,  where  primogeniture  does  not  exist,  the 
technical  distinction  between  coparcenary  and  estates  in  common 
may  be  considered  as  essentially  extinguished.  This,  however,  is 
not  the  law  in  this  State,  for,  as  we  have  seen,  these  estates  have 
been  recognized  by  the  legislature  and  by  the  Court  of  Appeals. 

But  the  question  has  been  expressly  decided  in  England.  At  com- 
mon law  it  could  not  arise,  except  where  the  ancestor  died  without 
male  heirs,  or  where  lands  descended  to  all  the  sons  according  to 
the  custom.  Where  a  testator  seized  of  lands  in  fee,  being  of  the 
nature  of  gavel-kind,  devised  them  to  his  heirs,  by  the  custom 
and  to  their  heirs  equally  to  be  divided  amongst  them,  the  ques- 
tion was,  whether  they  should  be   in  by  descent  or  devise?     Ander- 


I.   3]  ESTATES   IN   COPARCENARY.  95 1 

son,  J.,  held  that  without  the  words  "  equally  to/n£.divided  amongst 
them,"  they  would  be  joint  tenants,  and  that  wfft  ^bfese  words  they 
were  tenants  in  common,  but,  in  either  case,   that  they  took  as  heirs, 

I  CD 

and  the  other  justices  concurred.  Bear s  C<kf} '1  Leon.  112,  315. 
This  case  is  quoted  as  authority  in  1  Powel,\j38,  and  1  Jarman 
on  Wills,  68.  See  also  Packman  v.  Cole,  2  Sid.  53,  78,  to  the  same 
effect.  And  so  in  Cro.  Eliz.  431,  a  man  having  two  daughters,  being 
his  heirs,  devised  his  land  to  them  and  their  heirs.  "  The  ques- 
tion was  whether  they  took  as  joint  tenants  by  the  devise,  or  as 
coparceners  by  descent?"  And  all  the  justices  held  clearly  that  they 
took  as  joint-tenants.  If,  therefore,  the  will  creates  a  joint  tenancy, 
or  a  tenancy  in  common,  the  property  does  not  pass  to  the  devisees 
as  heirs-at-law,  but  as  purchasers  under  the  will. 

It  is  contended  that  the  distinction  is  merely  technical,  and  does 
not  affect  the  enjoyment  of  the  estate,  whether  held  in  coparcenary 
or  in  common,  as  in  Maryland  there  is  very  little,  if  any,  difference 
between  these  titles,  and  we  are  told  that  this  distinction  should  not 
avail  against  the  rule  on  which  the  appellants  rely  to  convert  this 
devise  into  an  inheritance.  This  argument  may  be  applied  the  other 
way  with  as  much  force.  When  a  will  is  made  the  presumption  is 
that  the  testator  intended  that  the  estate  should  pass  by  devise  and 
not  by  descent.  This  design,  however,  is  sometimes  frustrated  by 
rules  of  law,  which  is  sought  to  be  done  in  the  present  case,  by  one 
for  which  there  are  not  the  same  reasons  under  our  laws  as  in  Eng- 
land. 1  Powel,  421.  This  rule  is  as  technical  as  the  other.  How- 
ever, it  exists,  and  we  have  no  disposition  to  disregard  it,  but  we 
think  it  does  not  apply  in  the  present  case,  as  the  will  does  not  pass 
the  same  estate  in  quality  and  quantity  that  the  devisees  would  have 
taken  as  heirs-at-law. 

Judgment  affirmed. 


HOFFAR  v.  DEMENT. 

5  Gill,  (Md.)  132.  —  1847. 


Assumpsit  by  one  of  the  heirs-at-law  of  Joseph  N.  Stonestreet, 
deceased,  for  use  and  occupation  of  lands  of  said  decedent  after  his 
death.  The  court  instructed  the  jury  that  plaintiffs  are  not  entitled 
to  recover  for  the  reason,  among  others,  that  the  several  heirs  of 
J.  N.  Stonestreet  should  have  been  united  as  plaintiffs.  Judgment 
for  defendants.     Plaintiffs  appeal. 

Spence,  J. — *  *  *  The  first  question  to  be  disposed  of  is, 
whether  the  county  court  erred  in  deciding  that  the  plaintiffs  could 


952    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

not  recover  upon  the  first  count  in  the  declaration?  We  think  they 
did  not.  The  defendant's  testator  entered  upon  the  land  under  a 
purchase  from  Nicholas  Stonestreet,  subsequent  to  the  death  of 
Joseph  Stonestreet;  there  is  no  evidence  of  any  express  demise  or 
agreement,  to  rent  by  the  heirs  of  Joseph  Stonestreet,  jointly  or 
severally;  in  fact  the  evidence  is  conclusive  that  there  was  none. 
The  plaintiffs,  to  maintain  this  action,  then  must  rely  upon  an 
implied  demise  or  agreement  to  establish  the  relation  of  landlord 
and  tenant  between  George  Dement,  the  defendant's  testator,  and 
the  children  of   J.  N.  Stonestreet. 

Tindal,  C.  J.,  in  the  case  of  Decharms  v.  fforwood,  10  Bingham's 
R.  526,  expresses  his  opinion  in  this  unequivocal  language:  "  The 
authorities  all  agree  that  whatever  be  the  number  of  coparceners, 
they  all  constitute  but  one  heir  —  they  are  connected  together  by 
unity  of  interest  and  unity  of  title."  In  Maryland  the  children  of 
parents  who  die  intestate  seised  in  fee  of  lands,  tenements,  or 
hereditaments,  take  as  coparceners,  and  are  so  treated  by  the  act  of 
1820,  ch.  191,  §  5;  and  the  conclusion  is  irresistible  that  if  they  can- 
not separately  maintain  an  action  of  assumpsit,  for  money  had  and 
received,  against  a  person  who  had  received  the  rent  in  the  char- 
acter of  trustee,  as  was  decided  in  the  case  of  Decharms  v.  Horwood, 
that  they  cannot  recover  in  separate  actions  upon  an  implied  demise 
or  agreement  to  rent,  upon  a  count  for  use  and  occupation. 


4.    Estates  by  the  Entirety. 

BERTLES  v.  NUNAN. 

92  New  York,  152.  —  1883. 

Suit  to  compel  a  purchaser  of  lands  to  complete  the  purchase. 
The  lands  in  question  were  conveyed  "  to  Cornelius  Day  and  Hannah 
Day,  his  wife,  .  .  .  their  heirs  and  assigns."  Cornelius  died, 
and  thereafter  Mrs.  Day  remained  in  possession  of  the  premises  until 
her  death.  The  premises  were  sold  by  the  administratrix  of  Mrs. 
Day  for  the  payment  of  debts  against  her  estate.  Purchaser  asserts 
that  Mrs.  Day  was  not  seised  of  more  than  an  undivided  half  interest 
and  that  plaintiff  cannot  give  a  good  title  to  the  whole  under  the 
surrogate's  order.     Judgment  for  plaintiff  below.    Defendant  appeals. 

Earl,  J.  — On  the  first  day  of  August,  1868,  certain  land,  which 
is  the  subjectof  this  controversy,  was  conveyed  by  deed  to  Cornelius 
Day  and  Hannah  Day,  his  wife,  and  to  their  heirs  and  assigns;  and 
the  sole  question  for  our  determination  is  whether  the  grantees  took 


I.  4.]  ESTATES   BY   THE   ENTIRETY.  953 

the  land  as  tenants  in  common  or  whether  each  took  and  became 
seised  of  the  entirety. 

By  the  common  law,  when  land  was  conveyed  to  husband  and 
wife,  they  did  not  take  as  tenants  in  common,  or  as  joint  tenants, 
but  each  became  seised  of  the  entirety,  per  tout,  et  no//  per  my,  and 
upon  the  death  of  either  the  whole  survived  to  the  other.  The  sur- 
vivor took  the  estate,  not  by  right  of  survivorship  simply,  but  by 
virtue  of  the  grant  which  vested  the  entire  estate  in  each  grantee. 
During  the  joint  lives  the  husband  could,  for  his  own  benefit,  use, 
possess  and  control  the  land,  and  take  all  the  profit  thereof,  and 
he  could  mortgage  and  convey  an  estate  to  continue  during  the  joint 
lives,  but  he  could  not  make  any  disposition  of  the  land  that  would 
prejudice  the  rights  of  his  wife  in  case  she  survived  him. 

This  rule  is  based  upon  the  unity  of  husband  and  wife,  and  is  very 
ancient.  It  must  have  had  its  origin  in  the  archaic  period  of  our 
race,  and  it  colored  all  the  relations  of  husband  and  wife  to  each 
other,  to  the  law  and  to  society.  In  1  Blackst.  Com.  442,  the 
learned  author  says:  "  Upon  this  principle,  of  an  union  of  person 
in  husband  and  wife,  depend  almost  all  the  legal  rights,  duties  and 
disabilities  that  either  of  them  acquired  by  the  marriage.  I  speak 
not  at  present  of  the  rights  of  property,  but  of  such  as  are  merely 
personal.  For  this  reason  a  man  cannot  grant  anything  to  his  wife 
or  enter  into  covenant  with  her;  for  the  grant  would  be  to  suppose 
her  separate  existence,  and  to  covenant  with  her  would  be  only  to 
covenant  with  himself."  They  were  not  allowed  to  give  evidence 
against  each  other,  mainly  because  of  the  union  of  person,  for  if 
they  were  admitted  to  be  witnesses  for  each  other  they  would  con- 
tradict one  maxim  of  the  common  law,  nemo  in  propria  causa  testis 
esse  debet;  and  if  against  each  other  they  would  contradict  another 
maxim,  nemo  tenetur  se  ipsum  accusare. 

As  one  of  the  consequences  of  the  same  rule,  the  husband  was 
made  responsible  to  society  for  his  wife.  He  was  liable  for  her  torts 
and  frauds,  and,  in  some  cases,  for  her  crimes. 

This,  and  the  other  rules  regulating  the  effect  of  marriage  at  com- 
mon   law,   were  not  designed    to  degrade  and   oppress  the   wife. 

Blackstone  (2  Com.  445)  says:  "  Even  the  disabilities  which  the 
wife  lies  under  are,  for  the  most  part,  intended  for  her  protection 
and  benefit;  so  great  a  favorite  is  the  female  sex  of  the  laws  of 
England." 

The  common-law  rule  as  to  the  effect  of  a  conveyance  to  husband 
and  wife  continued  in  force,  notwithstanding  the  Revised  Statutes, 
which  provided  that  "  every  estate  granted  or  devised  to  two  or 
more  persons  in  their  own  right  shall  be  a  tenancy  in  common  unless 


954    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

expressly  declared  to  be  in  joint  tenancy."  3  R.  S.  2179  (7tn  ed);1 
Dios  v.  Glover,  1  Hoff.  Ch.  71;  Torrey  v.  Torrey,  14  N.  Y.  430; 
Wright  v.  Saddler,  20  id.  320.  In  the  latter  case  Comstock,  J., 
said:  "  It  appears  to  be  well  settled  that  this  statute  does  not  apply 
to  the  conveyance  of  an  estate  to  husband  and  wife.  They  are 
regarded  in  law  as  one  person." 

But  the  claim  is  made  that  the  legislation  in  this  State,  in  the 
years  1848,  1849,  i860  and  1862,  in  reference  to  the  rights  and  property 
of  married  women,  has  changed  the  common-law  rule  so  that  now 
when  land  is  conveyed  to  husband  and  wife  they  take  as  tenants  in 
common,  as  if  unmarried.  In  construing  these  statutes  the  rule 
must  be  observed,  and  usually  has  been  observed,  that  statutes 
changing  the  common  law  must  be  strictly  construed,  and  that  the 
common  law  must  be  held  no  further  abrogated  than  the  clear  import 
of  the  language  used  in  the  statutes  absolutely  requires. 

Section  3  of  chapter  200  of  the  Laws  of  1848,  as  amended  by  chap- 
ter 375  of  the  Laws  of  1849,  provides  that  "  any  married  female  may 
take  by  inheritance  or  by  gift,  grant,  devise  or  bequest,  from  any 
person  other  than  her  husband,  and  hold  to  her  sole  and  separate 
use,  and  convey  and  devise,  real  and  personal  property,  or  any 
interest  or  estate  therein,  and  the  rents,  issues  and  profits  thereof,  in 
the  same  manner  and  with  like  effect  as  if  she  were  unmarried,  and 
the  same  shall  not  be  subject  to  the  disposal  of  her  husband  or  be 
liable  for  his  debts."  It  is  not  the  effect  of  this  section,  and  plainly 
was  not  its  purpose,  to  change  the  force  and  operation  of  a  convey- 
ance to  a  wife.  It  does  not  enlarge  the  estate  which  a  wife  would 
otherwise  take  in  land  conveyed  to  her,  and  whatever  the  effect  of 
a  conveyance  to  a  husband  and  wife  was  prior  to  that  statute,  so  it 
remains.  If  the  operation  of  such  a  conveyance  was  to  convey  the 
entire  estate  to  each  of  the  grantees,  so  that  each  became  seised  of 
the  entirety,  there  is  nothing  in  the  force  or  effect  of  the  language 
used  to  change  the  operation  of  such  a  deed  so  as  to  make  the 
grantees  tenants  in  common.  The  section  gives  the  wife  no  greater 
right  to  receive  conveyances  than  she  had  at  common  law,  but  its 
sole  purpose  was  to  secure  to  her  during  coverture  what  she  did  not 
have  at  common  law,  the  use,  benefit  and  control  of  her  own  real 
estate,  and  the  right  to  convey  and  devise  it  as  if  she  were  unmarried. 

By  §  1  of  the  act  (chapter  90  of  the  Laws  of  i860)  it  is  pro- 
vided that  "  the  property,  both  real  and  personal,  which  any  married 
woman  now  owns  as  a  sole  and  separate  property;  that  which  comes 
to  her   by   descent,    devise,  Inquest,    gift   or   grant;   that  which  she 

1  N.  V.  R.  I'.  I..  §  56.  -  ED. 


I.  4-]  ESTATES    BY   THE   ENTIRETY.  955 

acquires  by  her  trade,  business,  labor  or  services,  carried  on  or  per- 
formed on  her  sole  and  separate  account;  that  which  a  woman  mar- 
ried in  this  State  owns  at  the  time  of  her  marriage,  and  the  rents, 
issues  and  profits  of  all  such  property,  shall,  notwithstanding  her 
marriage,  be  and  remain  her  sole  and  separate  property,  and  may  be 
used,  collected  and  invested  by  her  in  her  own  name,  and  shall  not 
be  subject  to  the  interference  or  control  of  her  husband,  or  liable 
for  his  debts;"  and  in  §  3  of  the  Act  of  i860,  as  amended  by 
the  act,  chapter  172  of  the  Laws  of  1862,  it  is  provided  that  "  any 
married  woman  possessed  of  real  estate  as  her  separate  property 
may  bargain,  sell  and  convey  such  property,  and  enter  into  any  con- 
tract in  reference  to  the  same,  with  the  like  effect,  in  all  respects, 
as  if  she  were  unmarried."  There  is  great  plausibility  in  the  claim 
that  these  provisions  in  the  Acts  of  1S60  and  1862  have  reference 
only  to  the  separate  property  of  a  wife,  which  she  owns  separate 
from  her  husband,  and  that  they  have  no  reference  whatever  to  land 
conveyed  to  husband  and  wife,  in  which,  by  the  common  law,  each 
became  seised  of  the  entirety.  The  language  is  not  so  strong  and 
direct  as  that  of  the  Revised  Statutes,  which  provided  that  a  grant 
to  two  or  more  persons  shall  create  a  tenancy  in  common,  and  which 
was  yet  held  not  to  make  husband  and  wife  tenants  in  common. 
But  it  is  not  necessary  now  to  determine  that  these  provisions  of 
law  do  not  apply  to  lands  conveyed  to  husband  and  wife,  and  we 
pass  that  question.  It  is  sufficient  now  to  hold  that  they  do  not 
limit  or  define  what  estate  the  husband  and  wife  shall  take  in  lands 
conveyed  to  them  jointly.  Their  utmost  effect  is  to  enable  the  wife 
to  control  and  convey  whatever  estate  she  gets  by  any  conveyance 
made  to  her  solely  or  to  her  and  others  jointly. 

The  claim  is  made  that  the  legislation  referred  to  has  destroyed 
the  common-law  unity  of  husband  and  wife,  and  made  them  substan- 
tially separate  persons  for  all  purposes.  We  are  of  the  opinion  that 
the  statutes  have  not  gone  so  far.  The  legislature  did  not  intend 
to  sweep  away  all  the  disabilities  of  married  women  depending  upon 
the  common-law  fiction  of  a  unity  of  persons,  as  a  brief  reference  to 
the  statutes  will  show.  The  Act  of  1848  gave  no  express  authority 
to  a  married  woman  to  grant  or  dispose  of  her  property;  such 
authority  came  by  the  Act  of  1849.  The  legislature  clearly  under- 
stood that  the  common-law  unity  of  husband  and  wife,  and  the  dis- 
abilities dependent  thereon  still  remained,  notwithstanding  those 
acts,  because  in  i860,  by  the  act  of  that  year,  it  empowered  a  mar- 
ried woman  to  perform  labor  and  to  carry  on  business  on  her 
separate  account;  to  enter  into  contracts  in  reference  to  her  sep- 
arate real  estate;  to  sue  and  be  sued  in  all  matters  having  relation 


956    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

to  her  property,  and  tu  maintain  actions  for  injuries  to  her  person. 
Until  1867  (chap.  782)  husbands  retained  their  common-law  rights 
of  survivorship  to  the  personal  property  of  their  wives.  It  was  not 
until  chapter  887  of  the  laws  of  the  same  year  that  husband  and  wife 
could,  in  civil  actions,  be  compelled  to  give  evidence  for  or  against 
each  other;  and  in  1876  (chap.  182),  for  the  first  time,  they  could  be 
examined  in  criminal  proceedings  as  witnesses  for  each  other;  and 
provision  was  first  made  in  the  Penal  Code  (§  715)  that  they  could, 
in  criminal  proceedings,  be  witnesses  for  and  against  each  other. 

From  this  course  of  legislation  it  is  quite  clear  that  the  legislature 
did  not  understand  that  the  common-law  rule  as  to  the  unity  of  hus- 
band and  wife  had  been  abrogated  by  the  acts  of  1848,  1849  and 
i860,  and  that  whenever  it  intended  an  invasion  of  that  rule,  it  made 
it  by  express  enactment.  Still  more  significant  is  the  act,  chapter 
472  of  the  Laws  of  1880,  which  provides  that  "  whenever  husband 
and  wTife  shall  hold  any  lands  or  tenements  as  tenants  in  common, 
joint  tenants  or  as  tenants  by  entireties,  they  may  make  partition  or 
division  of  the  same  between  themselves,"  by  deeds  duly  executed 
under  their  hands  and  seals.  Here  the  disability  of  husband  and 
wife,  growing  out  of  their  unity  of  person,  to  convey  to  each  other  is 
recognized,  as  is  also  the  estate  by  entireties  created  by  a  deed  to 
them  jointly. 

So  the  common-law  incidents  of  marriage  are  swept  away  only  by 
express  enactments.  The  ability  of  the  wife  to  make  contracts  is 
limited.  Her  general  engagements  are  absolutely  void,  and  she  can 
bind  herself  by  contract  only  as  she  is  expressly  authorized  to  do  so 
by  statute.  A  husband  still  has  his  common-law  right  of  tenancy 
by  the  curtesy.  Although  §  7  of  the  Act  of  i860  authorizes  a 
married  woman  to  maintain  an  action  against  any  person  for  an 
injury  to  her  person  or  character,  yet  we  have  held  that  she  cannot 
maintain  an  action  against  her  husband  for  such  an  injury,  and  so  it 
was  held,  notwithstanding  the  acts  of  1848,  1849  and  i860,  that  the 
common-law  disability  of  husband  and  wife  growing  out  of  their 
unity  of  person  to  convey  to  each  other  still  existed.  White  v. 
Wager,  25  N.  Y.  333;  Winans  et  al.  v.  Peebles  et  a/.,  32  Id.  423; 
Meeker  v.  Wright,  76  Id.  262,  270.  It  is  believed  also  that  the  com- 
mon-law rule  as  to  the  liability  of  the  husband  for  the  torts  and 
crimes  of  his  wife  are  still  substantially  in  force. 

\  After  discussing  Goelet  v.  Gori,  31  Barb.  314;  Farmers  and  Me- 
Chanics'  National  Bank  of  Rochester  v.  Gregory,  49  Barb.  155; 
Miller  v.  Miller,  <>  Abb.  Pr.  (N.  S.)  444;  Freeman  v.  Barber,  3  N. 
Y.  Sup.  Ct.  (T.  <>  C.)  574;  Beach  v.  Hollister,  3  //////  519,  and 
Ward  v.  ''nun,  54  How.  Pr.  95,  the  court  proceeds  \\ 


I.  4-]  ESTATES    BY    THE    ENTIRETY.  957 

It  is  true  that  these  decisions  are  not  absolutely  binding  upon 
this  court,  but  they  settled  the  law  in  the  Supreme  Court.  For 
twenty  years  after  1849  there  was  no  decision  or  published  opinion 
in  this  State  in  conflict  with  them,  and  they  are,  under  the  circum- 
stances, entitled  to  great  weight  here.  They  undoubtedly  lay  down 
a  rule  which  has  been  followed  and  observed  by  conveyancers,  and 
we  have  no  doubt  that  property  to  the  value  of  millions  is  now  held 
under  conveyances  made  in  reliance  upon  the  common-law  rule  as 
thus  expounded.  These  decisions  were  never  questioned  in  this 
State  by  any  court  until  the  decision  in  the  case  of  Meeker  v. 
Wright,  which  was  rendered  in  this  court  in  1879  (76  N.  Y.  262). 
In  that  case  the  learned  judge  writing  the  opinion  reached  the  con- 
clusion that  the  common-law  rule  governing  conveyances  to  husband 
and  wife  had  been  abrogated  by  the  modern  legislation  in  this  State. 
But  that  portion  of  the  opinion  was  not  concurred  in  by  a  majority 
of  the  judges.  The  views  of  that  judge  were  very  forcibly  and  ably 
expressed,  and  they  have  been  carefully  reconsidered.  They  do  not 
convince  us  that  the  conclusions  he  reached  should  be  adopted  by 
this  court.  That  case  is  supposed  to  have  unsettled  the  law  some- 
what in  this  State.  In  Feely  v.  Buckley,  28  Hun  451,  it  was  held 
upon  its  authority,  by  a  divided  court,  that  tenancy  by  the  entirety 
is  abrogated  by  the  Married  Woman's  Acts;  and  upon  the  same 
authority  it  is  said  a  similar  holding  was  made  in  Zorntlein  v.  Brain, 
decided  in  the  Superior  Court  of  New  York,  in  January  of  this  year, 
by  a  divided  court.  It  is  also  said  that  in  Forsyth  v.  McCall,  in  the 
fourth  department  in  June,  1880,  and  in  Meeker  v.  Wright,  after  a 
new  trial,  in  the  third  department,  in  April,  1882,  it  was  decided 
that  the  common-law  rule  was  not  abrogated.  27  Albany  Law  Jour- 
nal, 199.  And  these  decisions,  together  with  the  one  which  is  now 
under  review,  are  all  the  decisions  made  in  this  State  since  the  case 
of  Meeker  v.  Wright  was  in  this  court  which  have  come  to  our  atten- 
tion. 

Legislation  similar  to  that  which  exists  in  this  State,  as  to  the 
rights  and  property  of  married  women,  exists  in  many  of  the  States 
of  the  Union,  and  the  decisions  are  nearly  uniform  in  all  the  other 
States  where  the  question  has  arisen,  that  a  conveyance  to  husband 
and  wife  has  the  common-law  effect,  notwithstanding  such  legisla- 
tion. Without  citing  all,  we  call  attention  to  the  following  cases 
and  authorities:  Bates  v.  Seeley,  46  Penn.  St.  24S;  French  v.  MaJian, 
56  Id.  289;  Diver  v.  Diver,  Id.  106;  Fisher  v.  Peovin,  25  Mich.  350; 
McDuff  v.  Beauchamy,  50  Miss.  531;  Washburn  v.  Burns,  34  N.  J. 
18;  Chandler  v.  Cheney,  37  Ind.  391;  Morburgh  v.  Cole,  49  Md.  402, 
33  Am.   Rep.  266;  Bennett  v.  Child,  19  Wis.  362;  Robitison  v.  Fagle, 


95§    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CM.  VII. 

29  Ark.  202;  1  Washb.  on  Real  Prop.  (3d  ed.)577;  Schouler  on  Hus- 
band and  Wife,  §§  397,  398;  1  Bishop  on  the  Laws  of  Married 
Women,  438,  §§  613,  etc.;  2  Id.  284,  §  284.  In  the  last  section  the 
learned  author  says:  "  Under  the  late  married  woman's  statutes, 
the  effect  of  which  is  to  prevent  any  part  of  the  wife's  interest  in  her 
lands  passing  to  her  husband,  the  rule  of  the  common  law,  by  force 
of  which  the  two  became  tenants  by  the  entirety  of  lands  conveyed 
to  both,  is  not  changed,"  and  he  says:  "  The  reason  for  the  doc- 
trine, looking  at  the  question  in  the  light  of  legal  principle,  is,  that 
the  statutes  which  preserve  to  married  women  their  separate  rights 
of  property  do  not  have,  or  profess  to  have,  any  effect  upon  the 
capacity  of  the  wife  to  take  property,  or  the  manner  of  her  taking 
it,  but  when  she  does  take  it  they  simply  preserve  the  right  in  her, 
to  her  separate  use,  forbidding  it  to  pass  in  part  or  in  full  to  her 
husband  under  the  rules  of  the  unwritten  law.  If,  then,  land  is  con- 
veyed to  a  husband  and  his  wife,  they  take  precisely  as  at  the  com- 
mon law  —  that  is,  as  tenants  by  the  entirety."  In  Diver  v.  Diver, 
Strong,  J.,  said:  "  But  it  is  said  the  Act  of  1848,  by  destroying  the 
legal  unity  of  the  husband  and  wife,  has  converted  such^an  estate 
into  a  tenancy  in  common;  that  is,  that  such  a  deed  conveys  a 
different  estate  from  that  which  the  same  deed  would  have  created 
if  made  prior  to  the  passage  of  the  act.  To  this  we  cannot  assent. 
It  mistakes  alike  the  letter  and  the  spirit  of  the  statute,  imputing  to 
it  a  purpose  never  intended.  The  design  of  the  legislature  was 
single.  It  was  not  to  destroy  the  oneness  of  husband  and  wife,  but 
to  protect  the  wife's  property,  by  removing  it  from  under  the 
dominion  of  the  husband.  To  effect  this  object  she  was  enabled  to 
own,  use  and  enjoy  her  property,  if  hers  before  marriage,  as  fully 
after  marriage  as  before,  and  the  act  declared  that  if  her  property 
accrued  to  her  after  marriage,  it  should  be  owned,  used  and  enjoyed 
by  her  as  her  own  separate  property,  exempt  from  liability  for  the 
debts  and  engagements  of  her  husband.  All  this  had  in  view  the 
enjoyment  of  that  which  is  hers,  not  the  force  and  effect  of  the 
instrument  by  which  an  estate  may  be  granted  to  her.  It  has  noth- 
ing to  do  with  the  nature  of  the  estate.  The  act  does  not  operate 
upon  rights  accruing  to  her  until  after  they  have  accrued.  It  takes 
such  rights  of  property  as  it  finds  them,  and  regulates  the  enjoyment, 
that  is  the  enjoyment  of  the  estate  after  it  has  vested  in  the  wife." 
At  common  law,  where  the  estate  was  conveyed  to  husband  and 
wife,  as  above  stated,  the  husband  had  the  control  and  use  of  the 
property  during  their  joint  lives.  It  is  unnecessary  now  to  determine 
whether,  under  the  Married  Woman's  Acts  in  this  State,  the  hus- 
band still  lias  such   a  right  in   real  estate  conveyed  to  him   and   his 


I.  4-]  ESTATES   BY   THE   ENTIRETY.  959 

wife  jointly.  It  was  said  in  some  of  the  authorities  cited  that  the 
statutes  had  changed  that  common-law  rule,  and  that  while  husband 
and  wife,  in  conveyances  to  them  jointly,  each  took  the  entirety, 
yet  that  the  land  could  not  be  sold  for  the  husband's  debts,  or  the 
use  and  profits  thereof  during  their  joint  lives  be  entirely  appropri- 
ated by  him.  It  is  not  important  in  this  case  to  determine  what  the 
relation  of  the  wife  to  the  land,  in  such  a  case,  now  is,  during  the 
life  of  her  husband. 

It  is  said  that  the  reason  upon  which  the  common -law  rule  under 
consideration  was  based  has  ceased  to  exist,  and  hence  that  the 
rule  should  be  held  to  disappear.  It  is  impossible,  now,  to  deter- 
mine how  the  rule,  in  the  remote  past,  obtained  a  footing,  or  upon 
what  reason  it  was  based,  and  hence  it  is  impossible  now  to  say 
that  the  reason,  whatever  it  was,  has  entirely  ceased  to  exist. 
There  are  many  rules  appertaining  to  the  ownership  of  real  property 
originating  in  the  feudal  ages,  for  the  existence  of  which  the  reason 
does  not  now  exist,  or  is  not  discernible,  and  yet,  on  that  account, 
courts  are  not  authorized  to  disregard  them.  They  must  remain  until 
the  legislature  abrogates  or  changes  them,  like  statutes  founded 
upon  no  reason,  or  upon  reasons  that  have  ceased  to  operate. 

It  was  never,  we  believe,  regarded  as  a  mischief  that  under  a 
conveyance  to  husband  and  wife  they  should  take  as  tenants  by  the 
entirety,  and  we  have  no  reason  to  believe  that  it  was  within  the 
contemplation  of  the  legislature  to  change  that  rule.  Neither  do 
we  think  that  there  is  any  public  policy  which  requires  that  the  stat- 
utes should  be  so  construed  as  to  change  the  common-law  rule.  It 
was  never  considered  that  that  rule  abridged  the  rights  of  married 
women,  but  rather  that  it  enlarged  their  rights,  and  improved  their 
condition.  It  would  be  against  the  spirit  of  the  statutes  to  cut 
down  an  estate  of  the  wife  by  the  entirety  to  an  estate  as  tenant  in 
common  with  her  husband.  If  the  rule  is  to  be  changed  it  should 
be  changed  by  a  plain  act  of  the  legislature,  applicable  to  future 
conveyances;  otherwise  incalculable  mischief  may  follow  by 
unsettling  and  disturbing  dispositions  of  property  made  upon  the 
faith  of  the  common-law  rule.  The  courts  certainly  ought  not  to 
go  faster  than  the  legislature  in  obliterating  rules  of  law  under 
which  many  generations  have  lived  and  flourished  and  the  best  civ- 
ilization of  any  age  or  country  has  grown  up. 

We  are,  therefore,  of  opinion  that  the  judgment  should  be 
affirmed,  with  costs.1 

1  But  if  the  intent  of  the  deed  is  clear  a  grant  to  husband  and  wife  may  make 
them    joint-tenants,  Thomburg  v.   Wiggins,  p.  940,    supra;  Joose  v.  Fay,  219  N  Y 
7;   or  tenants  in  common,  Miner  v.  Brown,  133  N.  Y.  308.  — Ed. 


I 


960    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

STELZ  v.  SHRECK.-. 
12S  New  York,  263.  —  1891. 

Action  for  the  admeasurement  of  dower.  Cross  appeals  from  an 
order  of  the  General  Term  denying  motions  by  both  plaintiff  and 
defendant  for  a  new  trial. 

The  premises  in  question  were  conveyed  in  1886  to  William  Stelz 
and  Minnie  Stelz,  his  wife.  William  thereafter  obtained  a  divorce 
from  Minnie  for  her  adultery;  later  he  married  the  plaintiff,  Maria 
Stelz,  and  died  intestate.  Minnie  is  the  defendant.  Maria  claims 
dower  in  the  whole  estate;  Minnie  claims  to  be  absolute  owner  of  the 
entire  parcel  of  land. 

Peckham,  J.  —  We  agree  in  this  case  with  the  views  expressed  by 
the  learned  judges  who  delivered  the  opinions  at  the  Special  and 
General  Terms  of  the  Supreme  Court.  The  sole  question  arises 
out  of  the  decree  of  divorce  which  the  husband  obtained  from  his 
first  wife  on  account  of  her  adultery. 

Did  that  divorce  have  any,  and  if  so  what,  effect  upon  the  char- 
acter of  the  holding  of  the  real  property  by  the  former  husband  and 
wife?  By  the  conveyance  the  husband  and  wife  took  an  estate  as 
tenants  by  the  entirety.  Bertles  v.  Nunan,  92  N.  Y.  152;  Zorntlein 
v.  Brain,  100  Id.  13. 

Such  a  tenancy  differs  from  all  others.  In  one  respect  it  is  like  a 
joint  tenancy,  in  that  there  is  a  right  of  survivorship  attached  to 
both,  but  it  is  not  a  joint  tenancy  in  substance  or  form.  Barber  v. 
Harris,  15  Wend.  615;  Jackson  v.  McConnell,  19  Id.  175;  Bertles  v. 
JVunan,  supra. 

It  originated  in  the  marital  relation,  and  although  the  survivor- 
ship presents  the  greatest  formal  resemblance  to  joint  tenancy, 
instead  of  founding  the  estate  by  the  entirety  upon  the  notion  of 
joint  tenancy,  all  the  authorities  refer  it  to  the  established  effect  of 
a  conveyance  to  husband  and  wife  pretty  much  independent  of  any 
principles  which  govern  other  cases.     Jackson  v.  McConnell,  supra. 

At  common  law  husband  and  wife  were  regarded  as  one  person, 
and  a  conveyance  to  them  by  name  was  a  conveyance  in  law  to  but 
one  person.  These  two  real  individuals,  by  reason  of  this  relation- 
ship, took  the  whole  of  the  estate  between  them,  and  each  was 
seised  of  the  whole  and  not  of  any  undivided  portion.  They  were 
thus  seised  of  the  whole  because  they  were  legally  but  one  person. 
Death  separated  them,  and  the  survivor  still  held  the  whole  because 
he  or  she  had  always  been  seised  of  the  whole,  and  the  person  who 
died  had  no  estate  which  was  descendible  or  devisable. 


I.  4.]  ESTATES    BY   THE    ENTIRETY.  961 

Being  founded  upon  the  marital  relation  and  upon  the  legal  theory 
of  the  absolute  oneness  of  husband  and  wife,  when  that  unity  is 
broken,  not  by  death,  but  by  a  divorce  a  vinculo,  it  stands  to  reason 
that  such  termination  of  the  marriage  tie  must  have  some  effect 
upon  an  estate  which  requires  the  marriage  relation  to  support  its 
creation.  The  claim  on  the  part  of  the  counsel  for  the  first  wife  is 
that  it  is  only  necessary  the  parties  should  stand  in  the  relation  of 
husband  and  wife  at  the  time  of  the  conveyance,  and  at  that  time 
the  estate  vests,  and  no  subsequent  divorce  can  affect  an  estate 
which  is  already  vested.  But  the  very  question  is,  What  is  the  char- 
acter of  the  estate  which  became  vested  by  the  conveyance?  If  it 
were  of  such  kind  that  nothing  but  the  termination  of  the  marriage 
by  the  death  of  one  of  the  parties  could  affect  it,  then  of  course  the 
claim  of  the  counsel  is  made  out,  but  it  is  an  assumption  of  the 
whole  case  to  say  that  the  estate  was  of  the  character  he  claims. 
When  the  idea  upon  which  the  creation  of  an  estate  by  the  entirety 
depends  is  considered,  it  seems  to  me  much  the  more  logical  as  well 
as  plausible  view  to  say  that  as  the  estate  is  founded  upon  the  unity 
of  husband  and  wife,  and  it  never  would  exist  in  the  first  place  but 
for  such  unity;  anything  that  terminates  the  legal  fiction  of  the 
unity  of  two  separate  persons  ought  to  have  an  effect  upon  the  ! 
estate  whose  creation  depended  upon  such  unity.  It  would  seem  as 
if  the  continued  existence  of  the  estate  would  naturally  depend 
upon  the  continued  legal  unity  of  the  two  persons  to  whom  the  con- 
veyance was  actually  made.  The  survivor  takes  the  whole  in  case 
of  death,  because  that  event  has  terminated  the  marriage  and  the 
consequent  unity  of  person.  An  absolute  divorce  terminates  the 
marriage  and  unity  of  person  just  as  completely  as  does  death  itself, 
only  instead  of  one  as  in  the  case  of  death  there  are  in  the  case  of 
divorce  two  survivors  of  the  marriage,  and  there  are  from  the  time 
of  such  divorce  two  living  persons  in  whom  the  title  still  remains. 
It  seems  to  me  the  logical  and  natural  outcome  from  such  a  state  of 
facts  is  that  the  tenancy  by  the  entirety  is  severed,  and  a  severance 
having  taken  place,  each  takes  his  or  her  proportionate  share  of  the 
property  as  a  tenant  in  common  without  survivorship.  It  is  said 
that  in  such  case  it  ought  to  be  a  joint  tenancy,  but  I  see  no  reason 
for  that  claim.  As  it  has  been  held  that  seisen  by  the  entirety  does 
not  create  a  joint  tenancy  either  in  substance  or  form  (19  Wend. 
supra),  and  as  a  tenancy  by  the  entirety  depended  wholly  upon  the 
marital  relationship,  there  can  be  no  reason  why  the  seisen  should 
be  turned  into  a  joint  tenancy  by  virtue  of  the  very  fact  which 
terminated  the  unity  of  persons  upon  which  the  right  of  survivor- 
ship is  itself  founded,  and  to  which  it  owed  its  continued  existence. 

LAW  OF  PROP.   IN  LAND — 6l 


962    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.   CH.  VII. 

It  is  true  that  a  conveyance  of  this  kind,  if  made  to  two  persons 
who  were  not  husband  and  wife,  would,  at  common  law,  have 
created  a  joint  tenancy.  But  our  statute  provides  that  every  estate 
granted  or  devised  to  two  or  more  persons  in  their  own  right  shall 
be  a  tenancy  in  common,  unless  expressly  declared  to  be  a  joint 
tenancy.  1  R.  S.  727,  §  44.  This  statute  did  not  reach  an  estate  by 
the  entirety,  nor  did  the  statutes  of  1848  and  1849,  and  x86o  and 
1S62.  Berths  v.  Nunan,  supra.  It,  therefore,  still  exists  under  our 
law. 

We  have  seen,  however,  that  a  tenancy  by  the  entirety  is  not  a 
joint  tenancy  in  form  or  substance.  Upon  what  principle  should 
the  termination  of  a  tenancy  by  the  entirety,  resulting  from  an  abso- 
lute divorce,  be  changed  into  a  joint  tenancy  in  the  face  of  our  stat- 
ute relating  to  joint  tenancies?  The  conveyance  did  not  expressly 
declare  that  the  tenancy  was  to  be  a  joint  tenancy,  and,  therefore, 
when  the  original  character  of  the  tenancy  by  the  entirety  is 
changed,  it  cannot  be  transformed  into  that  of  a  joint  tenancy  with- 
out a  clear  violation  of  our  statute. 

The  counsel  for  the  defendant  urges  that  we  are  giving  by  this 
decision  a  retroactive  effect  to  a  decree  of  divorce  in  a  case  not  war- 
ranted by  the  statute,  and  in  violation  of  the  well-settled  rule  in  this 
State  as  to  the  effect  of  such  a  decree.  He  says  that  we  change  the 
effect  of  the  deed  of  conveyance  and  that  the  decree  of  divorce  not 
only  severs  the  unity  of  person  from  the  time  of  its  entry,  but  that 
we  allow  it  to  da:e  back  to  the  date  of  the  conveyance,  and  to  give 
an  effect  to  such  conveyance  that  it  did  not  have  at  the  time  of  its 
execution.     We  think  not. 

/We  do  not  at  all  question  the  contention  of  the  defendant's  coun- 
sel that  a  decree  of  divorce  in  this  State  only  operates  for  the  future, 
and  has  no  retroactive  effect  or  any  other  effect  than  that  given  by 
,the  statute.      But  we  hold  that  the  character  of  the  estate  conveyed 
was  such  in  its  creation  that  it   depended   for   its   own    continuance 
upon  the  continuance  of  the  marital  relation,  and  when  that  relation 
is  severed   as  well   by  absolute  divorce  as   by  death,  the  condition 
necessary   to   support   the   continuance   of   the    original    estate    has 
ed,  and  the  character  of  the  estate  has  for  that  reason  changed. 
Tin-  estate  does  not  revest  in  the  grantor  or  his  heirs,  for  no  such 
«  onditioncan  be  found  in  the  law  or  in  the  nature  of  the  estate,  and 
•  must,  therefore,  remain  in  the  grantees,  but  by  an  altered  tenure. 
I  heir  holding  is  now  a  holding  of   two  separate  persons,  and  for  the 
ons  already  given  such   holding  should   be  by  tenancy  in  com- 
mon, and  of  (  ourse  without  any  survivorship. 

I  think    the  contention   that   the  first  wife  is  entitled  to  the  whole 


I.  4-]  ESTATES    BY    THE    ENTIRETY.  963 

of  the  estate  as  the  survivor  of  her  husband  cannot  be  maintained, 
although  the  question  is  new  in  this  State,  it  has  been  somewhat 
debated  in  the  courts  of  some  of  the  other  States.  In  Harrer  v.  Wall- 
ner,  80  111.  197,  and  Lash  v.  Lash,  58  Ind.  526,  and  Ames  v.  Norman,  4 
Sneed,  683,  similar  views  to  those  we  have  herein  stated  are  set 
forth.  A  contrary  decision  has  been  made  in  Michigan  in  the  case 
of  Lewis,  reported  in  48  Northwestern  Reporter  at  680.  We  have 
read  the  opinion  in  that  case,  but  we  feel  that  our  own  view  is  more 
in  accord  with   legal  principles,  and  we  cannot,  therefore,  follow  it. 

Upon  the  defendant's  appeal,  the  judgment  ought  to  be  affirmed. 

Upon  the  appeal  of  the  plaintiff,  her  counsel  contends  that  there 
is  a  condition  annexed  to  the  estate  by  the  entirety  which  is  implied 
by  law,  and  the  condition  is  that  each  of  the  grantees  shall  remain 
faithful  to  the  obligations  of  the  married  state  and  shall  not  by  his 
or  her  misconduct  cause  a  dissolution  of  the  marriage  relation  upon 
which  the  estate  depends.  I  find  no  warrant  for  implying  any  such 
condition  in  the  character  of  the  holding,  and  still  less  for  the  result 
which,  as  he  claims,  flows  from  a  violation  of  such  condition.  Its 
violation  (judicially  determined)  results  according  to  the  plaintiff's 
argument,  in  the  immediate  vesting  of  the  whole  estate  in  the  inno- 
cent party  to  the  marriage,  just  the  same  as  if  the  other  party  thereto 
were  actually  dead  instead  of  divorced.  None  of  the  authorities 
treats  the  estate  as  dependent  upon  any  such  condition,  and  how- 
ever proper  it  might  be  to  enact  by  legislative  authority  a  condition 
of  that  nature,  this  court  has  not  that  power.     *     *     * 

Judgment  affirmed. 


HILES  v.  FISHER. 
144  New  York,  306.  —  1895. 


Ejectment.  The  premises  in  question  were  conveyed  to  defend- 
ant as  husband  and  wife.  The  husband,  in  1886,  mortgaged  the 
premises  to  secure  certain  of  his  debts.  In  1890  Fisher  quitclaimed 
the  land  in  question  to  his  wife.  The  mortgage  was  foreclosed  in 
1892,  and  plaintiff  acquired  the  title  under  the  foreclosure.  The 
plaintiff  now  claims  that  he  should  recover  the  premises  with  right 
to  hold  the  same  during  the  joint  lives  of  husband  and  wife,  and  in 
fee  in  case  the  husband  survives  the  wife.  Mrs.  Fisher  claims  the 
mortgage  was  void  as  she  did  not  sign  it.  The  General  Term  held 
with  the  plaintiff.     Defendant  appeals. 

Andrews,  Ch.  J.  —  It  was  decided  in  Berths  v.  Nunan,  92  N.  Y. 
152,  that  the  separate  property  acts  relating  to  the  rights  of  married 


964    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.   CII.  VII. 

women  had  not  abrogated  the  common-law  doctrine,  that  under  a 
conveyance  to  husband  and  wife  they  take  not  as  tenants  in  com- 
mon, nor  as  joint  tenants,  but  by  the  entirety,  and  upon  the  death 
of  either  the  survivor  takes  the  whole  estate.  In  that  case  the  hus- 
band had  died,  leaving  his  wife  surviving,  and  the  question  was 
whether  the  wife  as  survivor  took  upon  the  death  of  her  husband 
the  entire  fee  under  the  doctrine  of  the  common  law.  The  ques- 
tion, what  change,  if  any,  had  been  wrought  by  the  separate  prop- 
erty acts  in  respect  to  the  common-law  rights  of  the  husband  to 
control  and  use  the  property  conveyed  to  husband  and  wife  during 
their  joint  lives,  was  not  considered  or  decided,  but  was  expressly 
reserved  on  the  ground  that  it  was  not  involved  in  the  case  then 
before  the  court.  That  question  is  involved  in  the  present  case  and 
must  now  be  decided. 

The  decision  in  Berths  v.  Nunan  is  supported  by  the  great  weight 
of  authority  in  other  jurisdictions  in  this  country,  but  in  some  of  the 
States  it  has  been  held  that  as  a  consequence  of  statutory  provisions 
substantially  like  those  in  this  State,  conferring  upon  married  women 
the  right  to  take  and  hold  separate  property  to  their  own  use,  free 
from  the  control  of  their  husbands,  as,  femes  sole,  estates  by  entireties 
have  been  abrogated  and  turned  into  tenancies  in  common.  In  the 
States  where  this  construction  has  been  put  upon  the  married 
women's  acts,  the  question  of  the  rights  of  the  parties  to  the 
usufruct  during  their  joint  lives  could  scarcely  arise,  because  it  is 
one  of  the  generally  admitted  results  of  this  legislation  that  the 
common-law  right  vested  in  the  husband  to  the  rents,  profits  and 
use  of  his  wife's  real  estate  during  their  joint  lives  has  been 
destroyed. 

It  is,  however,  a  much  more  serious  question  what  the  effect  of 
this  legislation  is  upon  the  common-law  right  of  the  husband  to  the 
usufruct  during  the  joint  lives  of  the  husband  and  wife,  of  lands  con- 
veyed to  them  jointly,  in  those  States  where  it  is  held  that  notwith- 
standing the  new  legislation  a  conveyance  to  husband  and  wife 
retains  its  common-law  character  and  incidents.  If  the  right  of  the 
husband  to  use  during  the  joint  lives  of  lands  held  under  this  tenure 
■vi-  a  right  growing  out  of  an  incident  to  this  particular  species  of 
tenancy;  in  other  words,  if  it  was  one  of  its  specific  and  essential 
characteristics,  then  it  would  be  difficult  to  segregate  this  right  from 
the  other  rights  incident  to  and  flowing  from  the  tenancy,  and  to  say 
that  while  the  estate  by  entireties  continues  this  feature  of  it  was 
intended  to  be  taken  away.  Bu1  the  taking  away  from  the  husband 
the  usufruct  during  the  joint  lives  of  lands  conveyed  to  husband  and 
wife  would  not  be  inconsistent  with  the  continuance  of  tenancies  by 


I.  4]  ESTATES   BY    THE    ENTIRETY.  965 

entireties,  provided  the  common-law  right  to  the  usufruct  was  not 
an  incident  of  the  tenancy,  but  of  the  marital  right  operating  upon 
property  so  held,  as  upon  all  other  real  property  of  the  wife.  The 
grand  characteristic  which  distinguishes  a  tenancy  by  the  entirety 
from  a  joint  tenancy  is  its  inseverability,  whereby  neither  the  hus- 
band nor  the  wife,  without  the  assent  of  the  other,  can  dispose  of 
any  part  of  the  estate  so  as  to  affect  the  right  of  survivorship  in  the 
other.  1  Bl.  182;  Wash,  on  Real  Prop.  425.  Each  is  said  to  be 
seised  of  the  whole  estate,  and  they  do  not  take  by  moieties,  and 
the  reason  assigned  in  the  old  books  for  this  anomalous  characteris- 
tic of  this  estate  is  the  legal  unity  of  the  husband  and  wife,  and  the 
incapacity  of  the  wife  to  hold  a  separate  and  severable  estate  in 
lands  under  a  joint  conveyance  to  both.  The  alleged  incapacity  of 
a  wife  to  take  and  hold  lands  conveyed  to  husband  and  wife  as  joint 
tenant  or  tenant  in  common  with  him  seems  inconsistent  with  the 
doctrine  which  has  finally  obtained,  that  by  express  words  of  a  grant 
or  devise  to  husband  and  wife  that  species  of  tenure  would  be 
created.  This  was  pointed  out  in  Miner  v.  Brown,  133  N.  Y.  308, 
and  authorities  were  cited  to  show  that  where  the  intention  disclosed 
by  the  deed  or  will  was  to  create  a  tenancy  in  common  that  estate 
would  be  created.  See,  also,  McDermott  v.  French,  15  N.  J.  Eq.  78; 
Wales  v ■.  Coffin,  13  Allen,  213;  1  Wash,  on  Real  Prop.  425.  There 
is  a  tendency  now  to  regard  the  creation  of  an  estate  by  the  entirety 
as  resting  upon  a  rule  of  construction  rather  than  upon  a  rule  of  law, 
and  to  regard  the  intention  as  disclosed  by  the  deed  or  will  creating 
it  as  the  governing  rule  for  determining  whether  that  estate  was 
created  rather  than  a  joint  tenancy  or  tenancy  in  common.  See  In  re 
March,  27  Ch.  Div.  166,  and  cases  before  cited.  It  was  conceded  under 
the  old  law  that  husband  and  wife,  who  were  joint  tenants  or  tenants 
in  common  of  lands  before  marriage,  remained  so  afterwards.  Coke 
on  Litt.  187b.  It  would  seem  to  follow  that  there  was  no  general 
incapacity  in  the  wife  to  hold  lands  with  the  husband  in  joint  ten- 
ancy or  as  tenant  in  common.  The  quality  of  the  estate  held  by 
husband  and  wife  as  tenants  by  the  entirety,  in  the  aspect  of  its 
inseverability  has  been  adverted  to.  But  it  is  important  in  view  of 
the  subsequent  discussion  to  observe  that  the  wife,  as  well  as  the 
husband,  took  an  estate  under  a  grant  to  both.  Each  was  said  to 
be  seised  of  the  whole,  and  not  of  any  separate  part.  Neither  could 
convey  his  or  her  interest  to  the  prejudice  of  the  right  of  survivor- 
ship in  the  other.  The  common  law,  however,  wholly  ignored  this 
principle  of  equality  between  husband  and  wife  in  regulating  the  • 
rights  of  the  parties  to  the  enjoyment  of  the  estate  during  the  joint  | 
lives.     They  were  not  regarded  as  having  a  joint  seisin  or  a  joint 


966    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

possession  for  the  purpose  of  the  use  during  coverture.  The  hus- 
band was  held  to  be  entitled  to  the  full  control  and  to  take  the  rents 
and  profits  of  the  land  during  the  joint  lives  to  the  exclusion  of  the 
wife,  and  he  had  power  to  sell,  mortgage  or  lease  for  the  same 
period,  and  this  life  interest  was,  according  to  the  weight  of 
authority,  subject  to  the  claims  of  his  creditors.  Barber  v.  Harris, 
15  Wend.  615;  Jackson  v.  McConnel,  19  Id.  175;  Meeker  v.  Wright, 
76  N.  Y.  262;  Berths  v.  Nunan,  supra;  Ames  v.  Norman,  4  Sneed, 
683;  Pray  v.  Stebbins,  141  Mass.  219.  But  the  right  of  the  husband 
at  common  law  to  take  the  rents  and  profits  of  lands  held  by  him 
and  his  wife  as  tenants  by  the  entirety,  during  coverture,  and  to 
assign  and  dispose  of  them  during  that  period,  did  not,  we  appre- 
hend, spring  from  the  peculiar  nature  of  this  estate.  He  acquired 
no  such  right  by  force  of  the  conveyance  itself,  and  it  was  not  an 
incident  thereto.  It  was  a  right  which  followed  the  conveyance  and 
inured  to  the  husband  from  the  general  principle  of  the  common  law 
which  vested  in  the  husband  jure  uxoris  the  rents  and  profits  of  his 
wife's  lands  during  their  joint  lives.  2  Kent  Com.  130;  Stewart  on 
Husb.  &  Wife,  §  308.  The  husband  took  the  rents  and  profits  of 
lands  held  in  entirety  upon  the  same  right  that  he  took  the  rents 
and  profits  of  her  other  real  estate,  whether  held  by  a  sole  or  joint 
title,  namely,  his  right  as  husband.  In  none  of  the  definitions  of 
tenancies  by  entireties  have  we  found  any  suggestion  that  this  was 
one  of  the  incidents  or  characteristics  of  such  estates,  and  we  think 
it  is  plain,  both  upon  reason  and  analogy,  that  it  had  its  origin  in 
those  harsh  principles  of  common  law  which  destroyed  for  most  pur- 
poses the  legal  identity  of  the  wife  and  subjected  her  person  and 
property  to  the  control  of  her  husband. 

In  considering  what  effect,  if  any,  the  legislation  in  this  State  has 
had  upon  the  right  of  the  husband  to  the  rents,  profits  and  control 
of  lands  held  by  him  and  his  wife  in  entirety,  (.luring  their  joint 
lives,  it  is  important  to  regard  not  only  the  language,  but  the  spirit 
of  the  new  enactments.  The  sole  purpose  of  the  original  statute  of 
1848  was  to  secure  to  married  women  the  enjoyment  of  their  real 
and  personal  property  which  belonged  to  them  at  the  time  of  their 
marriage,  or  which  they  might  thereafter  acquire  by  gift,  grant  or 
bequest  from  third  persons,  and  to  abrogate  the  common-law  right 
of  the  husband  in  and  to  the  real  and  personal  property  of  the  wife. 
The  righl  to  the  rents  and  profits  of  her  lands  jure  uxoris,  during  the 
joint  lives,  was  completely  swept  away,  not  by  express  enactment, 
but  as  a  necessary  consequence  of  investing  her  with  the  beneficial 
us'-  of  her  own  property,  free  from  his  control.  Subsequent  legisla- 
tion 1  onfirmed  her  rights  as  defined  by  the  Act  of  1848,  and  enlarged 


I.  4-]  ESTATES   BY    THE    ENTIRETY.  967 

them  in  other  directions,  but  the  Act  of  1848  was  the  seed  from 
which  all  the  subsequent  legislation  sprung.  This  legislation  ren- 
dered unnecessary  any  longer  the  cumbrous  mechanism  of  settle- 
ments or  resort  to  the  imperfect  powers  of  Courts  of  Chancery  to 
secure  to  married  women  the  enjoyment  of  their  own  property. 

In  determining  the  question  now  before  us,  too  much  emphasis 
cannot  be  placed  upon  the  fact  that  the  legislation  of  1848  and  the 
subsequent  years  uprooted  the  principle  of  the  common  law,  hoary 
with  age,  which  vested  in  the  husband,  by  virtue  of  the  marriage 
relation,  control  of  the  property  of  his  wife  and  the  right  to  exclude 
her  from  its  enjoyment.  If  it  is  still  held,  notwithstanding  this 
legislation,  that  the  husband  takes  the  whole  rents  and  profits  during 
coverture  in  lands  held  in  entirety,  and  may  exclude  the  wife  from 
any  participation  therein,  an  exception  is  allowed,  standing  upon  no 
principle,  and  it  deprives  the  wife,  although  she  has  an  undoubted 
interest  and  estate  in  the  land,  from  any  benefit  thereof  during  the 
lives  of  both.  There  are,  as  we  can  perceive,  but  two  other  alterna- 
tives. Either  the  rents  and  profits  follow  the  nature  of  the  estate, 
and  can  neither  be  disposed  of  nor  charged  except  by  the  joint  act 
of  both  husband  and  wife,  which  seems  to  be  the  view  taken  in 
McCurdy  v.  Canning,  64  Pa.  St.  39,  or  the  parties  become  tenants  in 
common  or  joint  tenants  of  the  use,  each  being  entitled  to  one-half 
of  the  rents  and  profits  during  the  joint  lives,  with  power  to  each  to 
dispose  of  or  to  charge  his  or  her  moiety  during  the  same  period, 
which  seems  to  be  the  view  taken  in  Buttlar  v.  Rosenblath,  42  N.  J. 
Eq.  651.  We  think  the  rule  adopted  in  New  Jersey  best  reconciles 
the  difficulties  surrounding  the  subject.  The  estate  granted  is  not 
thereby  changed.  It  leaves  it  untouched,  with  all  its  common-law 
incidents.  It  deals  with  the  rents  and  profits  and  the  use  and  con- 
trol of  the  estate  during  coverture  only,  and  gives  to  each  party 
equal  rights  so  long  as  the  question  of  survivorship  is  in  abeyance, 
thereby  conforming  to  the  intention  of  the  new  legislation  to  take 
away  the  husband's  right  jure  uxoris,  in  his  wife's  property,  and  to 
enable  the  wife  to  have  and  enjoy  "  whatever  estate  she  gets  by  any 
conveyance  made  to  her  or  to  her  and  others  jointly,  and  does  not 
enlarge  or  diminish  that  estate."  The  rule  in  Pennsylvania  not  only 
deprives  the  husband  of  his  common-law  right  to  the  enjoyment  of 
the  whole  rents  and  profits,  but  of  the  enjoyment  of  any  share 
thereof,  except  with  the  concurrence  and  permission  of  his  wife. 

The  conclusion  we  have  reached  requires  a  reversal  of  the  judg- 
ment below  so  far  as  it  adjudges  that  the  mortgage  executed  by  the 
husband  to  the  plaintiff,  and  the  sale  thereunder,  vested  in  the  plain- 
tiff the  right  to  the  possession  of  the  whole  estate  during  the  joint 


968    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.   VII. 

lives  of  Mr.  and  Mrs.  Fisher.  The  husband  had  a  right  to  mortgage 
his  interest,  which  was  a  right  to  the  use  of  an  undivided  half  of  the 
estate  during  the  joint  lives  and  to  the  fee  in  case  he  survived  his 
wife,  and  by  the  foreclosure  and  sale  the  plaintiff  acquired  this  interest 
and  became  a  tenant  in  common  with  the  wife  of  the  premises  subject 
to  her  right  of  survivorship.  The  opinion  of  the  General  Term 
exhibits,  with  great  clearness,  the  reasons  upon  which  it  was  held 
that  a  conveyance  or  mortgage  by  the  husband,  without  restrictive 
words,  binds  the  fee  in  case  he  survives  the  wife.  See  1  Wash.  Real 
Prop.  425;   1  Prest.  Est.  135;  Ames  v.  Norman,  supra. 

The  judgment  below  should  be  modified  in  accordance  with  this 
opinion,  and,  as  modified,  affirmed,  without  costs  to  either  party. 


5.    Estate  in  Homestead.1 
HELM  v.  HELM. 

n  Kansas,  19.  —  1873. 
[Reported  herein  at  p.  711.] 


6.   Community  Property. 

Bell,  J.,  in  DE  BLANE  v.  LYNCH. 

23  Texas,  25.  —  1S59. 

The  principle  which  lies  at  the  foundation  of  the  whole  system  of 
community  property  is,  that  whatever  is  acquired  by  the  joint  efforts 
of  the  husband  and  wife  shall  be  their  common  property.  It  would 
be  unnecessary  consumption  of  time  to  quote  authorities  for  this 
proposition. 

It  is  true  that  in  a  particular  case  satisfactory  proof  might  be 
made,  that  the  wife  contributed  nothing  to  the  acquisitions;  or,  on 
the  other  hand,  that  the  acquisitions  of  property  were  owing  wholly 
to  the  wife's  industry.  But  from  the  very  nature  of  the  mar- 
riage relation  the  law  cannot  permit  inquiries  into  such  matters. 
The  law,  therefore,  conclusively  presumes  that  whatever  is  acquired, 

'  The  "  homestead  "  inn  rest  is  in  some  jurisdictions  an  estate,  of  a  special 
character,  in  the  husband  alone,  in  others  it  is  a  sort  of  joint  estate  in  husband 
and  wife,  in  still  other  jurisdictions  it  is  not  regarded  as  an  estate  at  all.  See 
the  American  note  to  Hutchins'  Williams  on  Real  Property,  pp.  153-163,  for  a 
general  view  of  the  statutory  provisions  and  the  leading  decisions  thereunder. 
Poi  the  New  York  statute,  see  .'.'   1  ^7-1404,  Code  Civ.  Pro.  —  Ei>. 


I.  6.]  COMMUNITY    PROPERTY.  969 

except  by  gift,  devise  or  descent,  or  by  the  exchange  of  one  kind  of 
property  for  another  kind,  is  acquired  by  their  mutual  industry. 
If  a  crop  is  made  by  the  labor  of  the  wife's  slaves  on  the  wife's  land, 
it  is  community  property,  because  the  law  presumes  that  the  hus- 
band's skill  or  care  contributed  to  its  production;  or  that  he,  in 
some  other  way,  contributed  to  the  common  acquisitions.1 


PARKER  v.  CHANCE. 

11   Texas,  513.  — 1854. 


Hemphill,  Ch.  J.  —  The  ground  upon  which  the  exception  was 
sustained  does  not  appear  from  the  record.  From  the  special  cause 
of  exception,  that  the  land  was  the  individual  property  of  the 
defendant  Lucy,  and  from  the  argument  of  counsel,  it  is  to  be 
inferred  that  in  the  opinion  of  the  court  the  land  was  the  separate 
property  of  the  said  defendant,  and  was  therefore  not  to  be  classed 
among  effects  of  the  deceased.  The  question  then  for  decision  is, 
whether  the  land  belonged  to  the  community  existing  between  the 
deceased  Farris  and  his  wife,  or  to  the  wife  exclusively  in  her  sep- 
arate right. 

To  determine  this  it  will  be  necessary  to  ascertain  in  what  the 
community  consists,  and  whether  property  conveyed  to  the  wife 
forms  presumptively  a  portion  of  it. 

In  the  case  of  Yates  v.  Houston,  3  Tex.  R.  433,  the  articles  com- 
posing the  community  were  specified ;  and  among  other  things  it  was 
said,  in  effect,  that  property  acquired  in  the  name  of  both  partners 
becomes  common,  whether  the  accession  be  by  gift  or  purchase,  and 
when  received  in  the  name  of  one,  by  onerous  title,  the  property  is 
also  common;  but  if  by  lucrative  title,  it  becomes  the  separate  right 
of  the  beneficiary.  That  such  are  the  established  rules  of  Spanish 
jurisprudence  may  be  seen  by  referring  to  the  authorities  cited  in 
Scott  and  Solomon  v.  Maynard  and  Wife,  Dallam  550.  Vide  La.  R. 
520.  In  that  case  reference  was  made  to  Febrero  Addicionado.  In 
the  Mexican  edition  of  that  author  the  doctrine  is  stated  in  §  6,  vol. 
1,  p.  219.  It  is  there  said  that  the  common  gains  are  not  only  those 
which  both  purchase  during  marriage,  with  the  funds  of  the  com- 
munity,   but   also   those  which   the   husband   purchases  by   himself 

1  The  doctrines  of  the  Civil  Law  upon  this  topic  are  in  force,  modified  more  or 
less  by  statutes,  in  Arizona,  California,  Idaho,  Louisiana,  Nevada,  New 
Mexico,  Texas  and  Washington.  For  the  origin  and  general  features  of  this 
estate  see  Ballinger  on  Community  Property,  Chapter  I.  —  Ed. 


9/0    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

singly,  or  his  wife  with  his  license  express  or  tacit  —  and  whether 
the  purchase  money  be  the  common  funds  or  the  separate  property 
of  one  of  them,  since  in  all  these  modes  the  property  becomes  com- 
mon, for  the  reason  that  the  time  of  the  acquisition  is  to  be 
regarded,  and  not  the  person  in  whose  name  the  purchase  is  made. 

In  the  succeeding  section  some  limitations  are  placed  on  this  rule; 
as,  for  instance,  where  with  the  proceeds  of  the  sale  of  an  article  of 
property  belonging  to  one  of  the  partners  another  article  is  pur- 
chased, and  this  is  so  expressed  in  the  instrument  of  conveyance,  or 
is  proven  by  witnesses  or  other  legal  means  or  the  other  partner 
admits  it;  although  such  mere  admission  is  but  feeble  proof,  since 
it  will  be  regarded  as  a  donation  between  the  two,  and  this  is  con- 
firmed only  by  death  and  for  so  much  as  bylaw  is  permitted;  in 
such  case  the  article  purchased  will  remain  the  individual  property 
of  the  partner  whose  funds  were  employed  in  making  the  purchase; 
and  also  where  one  article  of  property  is  exchanged  for  another,  the 
articles  procured  will  be  substituted  in  the  place  of  the  one 
exchanged,  etc.,  etc. 

It  appears,  then,  that  under  the  law  of  Spain,  the  fact  of  the  con- 
veyance being  in  the  name  of  the  wife  is  not  conclusive  or  prima 
facie  presumptive  proof  that  the  property  belongs  to  her  exclusively. 
It  would,  however,  doubtless  have  some  weight,  if  there  were  other 
circumstances  conducing  to  prove  that  the  property  belonged  indi- 
vidually to  the  wife. 

The  mere  fact  that  the  conveyance  was  made  by  Slauter  to  Mrs. 
Farris  does  not  make  the  land  her  separate  property.  Is  there  any- 
thing in  the  circumstances  under  which  this  conveyance  was  made 
which  would  confer  on  her  a  separate  right?  To  arrive  at  a  correct 
conclusion  on  this  point,  we  must  ascertain  whether  the  property  in 
the  certificate  or  the  land  surveyed  under  it,  belonged  to  the  com- 
munity or  the  husband  individually.  If  it  belonged  to  the  husband 
in  his  own  right,  then  an  intention  to  make  a  gift  to  his  wife  may  be 
very  properly  inferred  from  his  acts;  if,  however,  it  belonged  to  the 
community,  it  will  be  seen  that  no  presumption  of  donation  can  arise 
from  the  facts  as  stated  in  the  petition. 

In  the  case  of  Burris  v.  Wideman,  6  Tex.  R.  232,  we  have  decided 
in  effecl  that  headright  certificates,  issuing  under  the  Constitution 
of  the  Republic  and  the  law  of  1837,  form  a  portion  of  the  com- 
munity property;  and  such  is  the  legitimate  and  necessary  inference 
from  the  principles  decided  in  Yates  v.  Houston,  3  Tex.  R.  433. 

I  he  1  ertificate,  then,  placed  in  the  hands  of  Slauter,  belonged  to 
th«-  community;  for,  although  it  is  not  expressly  averred  that  the 
certificate  was   issued   to    Edward    Farris  as   the  head  of  the  matri- 


I.  6.]  COMMUNITY    PROPERTY.  971 

monial  union  of  which  his  wife  Lucy  formed  the  other  partner,  yet 
such  is  the  legitimate  inference  from  the  facts  as  averred. 

The  certificate  being  a  portion  of  the  community,  what  is  the  effect 
of  the  assignment  to  Slauter,  and  the  transfer  of  the  one-half  to 
Mrs.  Farris?  Can  it  have  any  other  consequence  than  would  arise 
from  a  retransfer  to  the  husband,  viz. .  to  restore  it  to  the  com- 
munity from  which  it  had  been  taken?  The  transaction  is,  in  sub- 
stance, an  agreement  by  the  husband  to  convey  to  the  locator  one- 
half  of  a  community  league  of  land  for  clearing  out  the  other  half. 
This  he  might  have  done  by  taking  the  patent  in  his  own  name,  and 
assigning  one-half  to  the  locator.  But  he  pursued  another  mode. 
He  assigns  the  whole  of  the  certificate  and  land,  with  an  obligation 
to  reconvey  the  one-half,  not  to  himself  but  to  his  wife.  Could  this 
change  from  one  partner  to  the  other  alter  the  rights  of  the  com- 
munity or  of  the  individual  partners?  When  the  land  was  assigned 
it  belonged  to  the  community;  in  the  hands  of  the  locator  it 
remained  common  property;  and  it  is  of  no  consequence  that  he 
conveyed  it  to  the  wife,  when  under  the  law  it  is  immaterial  whether 
the  conveyance  be  to  the  wife  or  husband.  For  whether  it  be  in  the 
name  of  either  or  of  both,  the  property  conevyed  belongs  to  the  com- 
munity. 

The  presumption  of  law  is  that  property,  conveyed  to  the  wife, 
belongs  to  the  community;  and  the  direction  of  a  husband,  to  make 
out  the  deed  in  the  name  of  the  wife,  will  not,  of  itself,  rebut  this 
legal  presumption.  In  this  case  Slauter,  the  locator,  might  have 
conveyed  to  either  husband  or  wife.  His  conveyance  to  either  has 
the  like  effect,  viz.:  to  vest  the  property  in  the  community. 

Where  the  husband  intends  to  relinquish  his  right  in  the  com- 
munity property,  and  to  transfer  it  to  his  wife,  his  act  must  be 
explicit  and  such  as  to  leave  no  doubt  of  his  intentions.  A  mere 
transfer  of  the  property  to  a  stranger,  with  directions  to  reconvey 
to  the  wife,  will  not  accomplish  the  object,  and  show  that  a  donation 
was  intended;  and  especially  when  the  stranger  is  bound  under  pen- 
alty, to  make  title.  For,  in  such  case,  the  conveyance,  though  made 
in  the  name  of  the  wife,  cannot  deprive  the  community  of  its  rights. 

It  is  not  necessary,  in  this  case,  to  express  any  opinion  as  to  the 
validity  or  extent  to  which  donations  of  community  property  may 
be  made  from  one  partner  in  matrimony  to  the  other. 

Had  this  transaction,  embracing  the  assignment  of  the  league  and 
the  retransfer  of  the  one-half  to  the  wife,  taken  place  under  the  com  • 
mon  law,  where  the  estate  of  community  and  the  doctrines  in  rela- 
tion to  it  are  unknown,  the  conveyance  to  the  wife  would  have  been 
presumptive  evidence  of  a  gift  in  advancement  by  the  husband.     2 


97-    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

Vern.  67;  8  Ves.  199;  Bright,  Hus.  and  Wife,  vol.  1,  p.  32.  Where 
a  husband  purchases  stock  in  the  name  of  himself  and  wife,  it  is 
prima  facie  a  gift  to  her  in  the  event  of  her  surviving;  Bright,  Hus. 
and  Wife,  vol.  1,  p.  32;  and  a  transfer,  by  the  husband,  of  stock 
already  purchased,  in,  (into),  their  joint  names,  would  be  presumed  a 
gift  to  the  wife.  lb.  These  are  doctrines  of  the  common  law,  and 
cannot  be  recognized  under  a  system  in  which  a  conveyance  to  the 
wife  is  presumptive  evidence,  not  of  her  separate  right  but  of  that  of 
the  community. 

The  doctrine  in  relation  to  donations  between  husband  and  wife 
need  not  be  discussed;  as  we  are  of  opinion  that  the  facts  do  not 
afford  any  evidence  of  donation.  Judgment  reversed  and  cause 
remanded. 

Reversed  and  remanded. 


7.   Estates  in  Partnership. 

BOPP  v.  FOX. 
63  Illinois,  540.  —  1S72. 
[Reported  herein  at  p.  686.] 


II.  Incidents  of  joint  estates. 

1.   Possession  and  Disseisin. 
WASS  v.  BUCKNAM. 

38  Maine,  356.  —  1S54. 
[Reported  herein  at  p.  640.] 


2.   Waste. 

McCORD  v.  OAKLAND  QUICKSILVER  MINING  CO. 

64  California,  134.  —  1883. 

[Reported  herein  at  p.  396.] 


JOHNSON  v.  JOHNSON. 

2  Hill's  Equi  i  v  (S.  C).  277.  —  1835. 

[Reported  herein  >it  p.  398.] 


II.  3-]  INCIDENTS   OF   JOINT   ESTATES.  973 

3.   Repairs  and  Improvements. 
WALKER  v.  SHERMAN. 
20  Wendell  (N.  Y.),  636.  —  1839. 
[Reported  herein  at  p.  21S.] 


CALVERT  v.  ALDRICH. 

99  Massachusetts,  74.  —  186S. 

Foster,  J. — The  issue  in  this  action  is  on  an  account  of  one 
cotenant  in  common  against  another  to  recover  from  the  defendant 
in  set-off  part  of  the  cost  of  certain  needful  repairs  made  by  the 
plaintiff  in  set-off  upon  the  common  property.  It  is  not  founded 
upon  any  contract  between  the  parties,  but  upon  a  supposed  legal 
obligation  which,  if  its  existence  were  established,  the  law  would 
imply  a  promise  to  fulfill. 

The  doctrine  of  the  common  law  on  this  subject  is  stated  by  Lord 
Coke  as  follows:  "  If  two  tenants  in  common  or  joint  tenants  be  of 
an  house  or  mill,  and  it  fall  in  decay,  and  the  one  is  willing  to  repair 
the  same,  and  the  other  will  not,  he  that  is  willing  shall  have  a  writ 
de  reparatione  facienda%  and  the  writ  saith  ad  reparationem  et  susten- 
tationem  ejusdem  damns  teneantur,  whereby  it  appeareth  that  owners 
are  in  that  case  bound  pro  bono  publico  to  maintain  houses  and  mills 
which  are  for  habitation  and  use  of  men."  Co.  Litt.  200  b;  lb.  54 
b.  And  in  another  place  he  says:  "  If  there  be  two  joint  tenants 
of  a  wood  or  arable  land,  the  one  has  no  remedy  against  the  other 
to  make  inclosure  or  reparations  for  safeguard  of  the  word  or 
corn,"  but  if  there  be  two  joint  tenants  of  a  house,  the  one  shall 
have  his  writ  de  reparatione  facie nda  against  the  other.  This  is  said 
to  be  because  of  "  preeminence  and  privilege  which  the  law  gives 
to  houses  which  are  for  men's  habitation."  Bowles's  Case,  11 
Co.  82. 

In  Carver  v.  Miller,  4  Mass.  561,  it  was  doubted  by  Chief  Justice 
Parsons  whether  these  maxims  of  the  common  law,  as  applied  to 
mills,  are  in  force  here,  especially  since  the  provincial  statute  of  7 
Anne,  c.  1,  revised  by  St.  1795,  c.  74.     *     *     * 

Doane  v.  Badger,  12  Mass.  65,  was  an  action  on  the  case.  The 
plaintiff  had  a  right  to  use  a  well  and  pump  on  the  defendant's  land; 
and  the  defendant  had  removed  the  pump  and  built  over  the  well, 
thereby  depriving  the  plaintiff  of  the  use  of  the  water.  The  judge 
before  whom  the  case  was   tried  had   instructed   the  jury  that  the 


974    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

defendant,  by  the  terms  of  a  deed  under  which  he  claimed,  was 
bound  to  keep  the  well  and  pump  in  repair,  although  they  were  out 
of  repair  when  he  purchased,  and,  without  any  previous  notice  or 
request,  was  liable  in  damages  for  the  injury  the  plaintiff  had  sus- 
tained by  his  neglect  to  make  repairs.  The  court  held  that  no  such 
evidence  was  admissible  under  the  declaration,  the  cause  of  action 
stated  being  a  misfeasance,  and  the  proof  offered  being  of  a  non- 
feasance only;  also,  that  a  notice  and  request  were  indispensable 
before  any  action  could  be  maintained.  Mr.  Justice  Jackson  in 
delivering  the  opinion  made  some  general  observations,  unnecessary 
to  the  decision  of  the  cause,  the  correctness  of  which  requires  a  par- 
ticular examination.  He  said  that  the  action  on  the  case  seems  to 
be  a  substitute  for  the  old  writ  de  reparatione  facienda  between  ten- 
ants in  common,  and  could  not  be  brought  until  after  a  request  and 
refusal  to  join  in  making  the  repairs.  He  added:  "  From  the  form 
of  the  writ  in  the  register,  it  seems  that  the  plaintiff,  before  bringing 
the  action,  had  repaired  the  house,  and  was  to  recover  the  defend- 
ant's proportion  of  the  expense  of  those  repairs.  The  writ  con- 
cludes, 'in  ipsius  dispendium  non  modicum  ct  gravamen.'1  It  is  clear 
that  until  he  have  made  the  repairs  he  cannot  in  any  form  of  action 
recover  anything  more  than  for  his  loss  as  of  rent,  etc.,  while  the 
house  remains  in  decay.  For  if  he  should  recover  the  sum  neces- 
sary to  make  the  repairs,  there  would  be  no  certainty  that  he  would 
apply  the  money  to  that  purpose."  Mumfordv.  Brown,  6  Co  wen, 
475,  a  per  curiam  opinion  of  the  Supreme  Court  of  New  York,  and 
Coffin  v.  Heath,  6  Met.  8o,  both  contain  obiter  dicta  to  the  same 
effect,  apparently  founded  upon  Doane  v.  Badger,  without  further 
research  into  the  ancient  law.  If  it  were  true  that  the  writ  de 
reparatione  was  brought  by  one  cotenant,  after  he  had  made  repairs, 
to  recover  of  his  cotenant  a  due  proportion  of  the  expense  thereof, 
there  would  certainly  be  much  reason  for  holding  an  action  on  the 
case  to  be  a  modern  substitute  for  the  obsolete  writ  de  reparatione. 
But  all  the  Latin  forms  of  the  writ  in  the  Register,  153,  show  that  it 
was  brought  before  the  repairs  were  made,  to  compel  them  to  be 
made  under  the  order  of  court.  Indeed,  this  is  implied  in  the  very 
style  by  which  the  writ  is  entitled,  de  reparatione  facienda,  viz.:  of 
repairs  to  be  made;  the  future  participle  facienda  being  incapable  of 
any  other  meaning.  This  also  appears  in  Fitzherbert,  N.  B  127, 
when-  the  writ  between  cotenants  of  a  mill  is  translated;  the  words, 
in  ipsius  dispendium  non  modicum  et gravamen,  quoted  by  Judge  Jack- 
,  being  <  orre<  tly  rendered,  "  to  the  great  damage  and  grievance 
of  him,"  the  said  plaintiff,  Fitzherbert  says:  "The  writ  lieth  in 
divers   eases;    one    is,  where    there   are  three    tenants  in  common  or 


II.  3-]  INCIDENTS   OF   JOINT   ESTATES.  975 

joint  or  pro  indiviso  of  a  mill  or  a  house,  etc.,  which  falls  to  decay, 
and  the  one  will  repair  but  the  other  will  not  repair  the  same;  he 
shall  have  this  writ  against  them." 

In  the  case  of  a  ruinous  house  which  endangers  the  plaintiff's 
adjoining  house,  and  in  that  of  a  bridge  over  which  the  plaintiff  has 
a  passage,  which  the  defendant  ought  to  repair,  but  which  he 
suffers  to  fall  to  decay,  the  words  of  the  precept  are,  "  Command  A. 
that,"  etc.,  "  he,  together  with  B.  and  C,  his  partners,  cause  to  be 
repaired."  The  cases  in  the  Year  Books  referred  to  in  the  margin 
of  Fitzherbert  confirm  the  construction  which  we  regard  as  the  only 
one  of  which  the  forms  in  that  author  are  susceptible,  namely,  that 
the  writ  de  reparatione  was  a  process  to  compel  repairs  to  be  made 
under  the  order  of  court.  There  is  nothing  in  them  to  indicate  that 
an  action  for  damages  is  maintainable  by  one  tenant  in  common 
against  another  because  the  defendant  will  not  join  with  the  plaintiff 
in  repairing  the  common  property.  In  a  note  to  the  form  in  the 
case  of  a  bridge,  it  is  said  in  Fitzherbert:  "  In  this  writ  the  party 
recovers  his  damages,  and  it  shall  be  awarded  that  the  defendant 
repair,  and  that  he  be  distrained  to  do  it.  So  in  this  writ  he  shall 
have  the  view  contra,  if  it  be  but  an  action  on  the  case  for  not 
repairing,  for  there  he  shall  recover  but  damages."  There  is  no 
doubt  that  an  action  on  the  case  is  maintainable  to  recover  damages 
in  cases  where  the  defendant  is  alone  bound  to  make  repairs  for  the 
benefit  of  the  plaintiff  without  contribution  on  the  part  of  the  lat- 
ter, and  has  neglected  and  refused  to  do  so.  See  Tenant  v.  Gold- 
win,  6  Mod.  311;  S.  C.  2  Ld.  Raym.  1089;   1   Salk.  21,  360. 

The  difficulty  in  the  way  of  awarding  damages  in  favor  of  one 
tenant  in  common  against  his  co-tenant  for  neglecting  to  repair  is, 
that  both  parties  are  equally  bound  to  make  the  repairs,  and  neither 
is  more  in  default  than  the  other  for  a  failure  to  do  so.  Upon  a 
review  of  all  the  authorities,  we  can  find  no  instance  in  England  or 
this  country  in  which,  between  co-tenants,  an  action  at  law  of  any 
kind  has  been  sustained,  either  for  contribution  or  damages,  after 
one  has  made  needful  repairs  in  which  the  other  refused  to  join. 
We  are  satisfied  that  the  law  was  correctly  stated  in  Converse  v. 
Ferre,  11  Mass.  325,  by  Chief  Justice  Parker,  who  said:  "  At  com- 
mon law  no  action  lies  by  one  tenant  in  common,  who  has  expended 
more  than  his  share  in  repairing  the  common  property,  against  the 
deficient  tenants,  and  for  this  reason  our  Legislature  has  provided  a 
remedy  applicable  to  mills."  The  writ  de  reparatione  facienda  brought 
before  the  court  the  question  of  the  reasonableness  of  the  repairs 
proposed,  before  the  expenditures  were  incurred.  It  seems  to  have 
been  seldom  resorted  to;  perhaps  because  a  division  of  the  common 


976    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.   CH.  VII. 

estate  would  usually  be  obtained  where  the  owners  were  unable  to 
agree  as  to  the  necessity  or  expediency  of  repairs.  Between  ten- 
ants in  common,  partition  is  the  natural  and  usually  the  adequate 
remedy  in  every  case  of  controversy.  This  is  the  probable  explana- 
tion of  the  few  authorities  in  the  books,  and  of  the  obscurity  in 
which  we  have  found  the  whole  subject  involved.  But  if  we  have 
fallen  into  any  error  in  our  examination  of  the  original  doctrines  of 
the  common  law  of  England,  it  is  at  least  safe  to  conclude  that  no 
action  between  tenants  in  common  for  neglecting  or  refusing  to 
repair  the  common  property,  or  to  recover  contribution  for  repairs 
made  thereon  by  one  without  the  consent  of  the  other,  has  been 
adopted  among  the  common-law  remedies  in  Massachusetts. 
This  result  is  in  accordance  with  the  rulings  at  the  trial. 

Exceptions  overruled.1 


4.  Accounting  for  Rents,  Etc. 

PICKERING  v.  PICKERING. 
63  New  Hampshire,  46S.  —  1885. 

Bingham,  J. — The  plaintiff  seeks  for  an  accounting,  and  to 
charge  the  defendant  for  the  rents  and  income  of  lands  and  buildings 
thereon.  The  parties  are  tenants  in  common.  The  defendant  has 
had  the  possession  and  income  of  the  property  since  December  27, 
1883,  and  has  in  that  time  expended  $370  in  necessary  repairs  that 
materially  increased  the  value  of  the  buildings  and  the  income,  and 
claims  to  be  allowed  for  the  same  in  the  accounting.  The  plaintiff 
had  no  notice  of  the  repairs,  and  was  not  requested  to  join  in  mak- 
ing them. 

If  we  are  to  consider  it  settled  at  common  law  that  one  tenant  in 
common  cannot  recover  of  his  co-tenant  a  contribution  for  necessary- 
repairs,  where  there  is  no  agreement  or  request  or  notice  to  join  in 
making  them,  or  excuse  for  a  notice  not  being  given  to  join,  Stevens 
v.  Thompson,  17  N.  H.  103,  in;  Wiggin  v.  Wiggin,  43  N '.  H.  561, 
568,  because  both  parties,  until  this  is  done,  are  equally  in  fault,  one 
having  as  much  reason  to  complain  as  the  other,  Mumford  v. 
Brown,  6  Cow.  475-477;  Kidder  v.  Rixford,  16  Vt.  169-172,  4  Kent. 
c,)m.  371;  Doane  v.  Badger,  12  Mass.  65-70;  Calvert  v.  Aldrich,  99 
Mass.  78,  it  does  not  follow  that  in  this  proceeding  for  an  equitable 
accounting  for  the  income,  a  pari  of  which  is  produced  by  the 
repairs,  th. ■  defendant    may  not   lie   allowed    for  them.     There  is  a 

1  See  also  Pickering  v.  Pickering;  infra.  —  Ed. 


I.  4.]  INCIDENTS   OF   JOINT    ESTATES.  977 

wide  difference  between  a  right  of  action  at  common  law  to  recover 
a  contribution  for  repairs,  and  a  right  to  have  them  allowed  out  of 
the  income,  which  exists  in  part  through  their  having  been  made. 
In  the  first  case,  the  party  makes  them  at  his  will  on  the  common 
property  without  the  consent  or  knowledge  of  his  co-tenant,  while  in 
the  last  the  co-tenant  recognizes  the  existence  of  the  repairs,  that 
they  have  materially  increased  the  income,  but  demands  the  increase 
and  refuses  to  allow  for  the  repairs.  The  objection,  that  no  privity, 
no  joint  knowledge,  no  authority  existed  is  in  equity  and  good  con- 
science waived  when  the  entire  income  is  demanded.  It  is  not  unlike 
the  ratification  of  the  acts  of  an  assumed  agent;  it  relates  back  to 
the  time  of  making  the  repairs,  and  makes  the  plaintiff  a  privy  from 
the  beginning.  He  cannot  claim  the  repairs  and  the  income,  and 
equitably  ignore  the  expense  of  making  them. 

In  Moore  v.  Cable,  1  Johns.  Ch.  385,  a  bill  for  the  redemption  of 
a  mortgage,  it  was  decided  that  the  mortgagee  should  not  be 
charged  for  rents  and  profits  arising  exclusively  from  repairs  made 
by  him. 

In  Jackson  v.  Loomis,  4  Cow.  168,  an  action  of  trespass  for  mesne 
profits  against  a  bona  fide  purchaser,  it  was  held  that  he  should  be 
allowed  against  the  plaintiff,  in  mitigation  of  damages,  the  value  of 
permanent  improvements,  made  in  good  faith,  to  the  extent  of  the 
rents  and  profits  claimed  by  the  plaintiff.  Green  v.  Biddle,  8 
Wheat.  1. 

In  Rathbun  v.  Colton,  15  Pick.  472,  485,  it  was  decided  that  when 
the  rent  of  a  trust  estate  is  increased  in  consequence  of  improve- 
ments made  by  the  trustee,  the  beneficiary  may  be  put  to  his  elec- 
tion, either  to  allow  the  trustee  the  expense  of  such  improvements, 
or  be  deprived  of  the  increase  of  rent  obtained  by  means  thereof; 
that  the  question  was  not  whether  the  trustee  has  a  right  to  make 
a  charge  for  the  improvements,  but  whether  the  plaintiffs  were 
entitled  to  receive  any  benefit  for  them,  they  refusing  to  contribute 
their  share  towards  the  expense. 

It  seems,  however,  that  courts  of  equity  have  not  confined  the 
doctrine  of  compensation  for  repairs  and  improvements  to  cases  of 
agreement  or  of  joint  purchases,  but  have  extended  it  to  other  cases 
where  the  party  making  the  repairs  and  improvements  has  acted  in 
good  faith,  innocently,  and  there  has  been  a  substantial  benefit  con- 
ferred on  the  owner,  so  that  in  equity  and  right  he  ought  to  pay  for 
the  same.  2  Story  Eq.  Jur.,  §§  1236,  1237,  799  b;  Coffin  v.  Heath.  6 
Met.  76,  80.  And  in  2  Story  Eq.  PL,  §  799  b,  n.  1,  it  is  said:  "  In 
cases  where  the  true  owner  of  an  estate,  after  a  recovery  thereof  at 
law  from  a  bona  fide  possessor  for  a  valuable  consideration  without 

LAW  OF  PROP.   IN  LAND  —  62 


9/8    JOINT  OWNERSHIP  OF  INTERESTS  IN  LAND.    [PT.  IV.  CH.  VII. 

notice  seeks  an  account  in  equity  as  plaintiff  against  such  possessor 
for  the  rents  and  profits,  it  is  the  constant  habit  of  courts  of  equity 
to  allow  such  possessor,  as  defendant,  to  deduct  therefrom  the  full 
amount  of  all  meliorations  and  improvements  which  he  has  bene- 
ficially made  upon  the  estate,  and  thus  to  recoup  them  from  the  rents 
and  profits.  .  .  .  So,  if  the  true  owner  of  an  estate  holds  only 
an  equitable  title  thereto,  and  seeks  the  aid  of  a  court  of  equity  to 
enforce  that  title,  the  court  will  administer  that  aid  only  upon  the 
terms  of  making  compensation  to  such  bona  fide  possessor  for  the 
amount  of  his  meliorations  and  improvements  of  the  estate  bene- 
ficial to  the  owner. "  This  is  on  the  old-established  maxim  in  equity 
jurisprudence,  that  he  who  seeks  equity  must  do  equity.  Hannati 
v.  Osborn,  4  Paige  Ch.  336;  Dec/is  Appeal,  57  Penn.  St.  468,  472; 
Peyton  v.  Smith,  2  Dev.  &  Bat.  Eq.  325,  349;  Hibbert  v.  Cooke,  1  Sim. 
&  S.  552. 

The  sum  of  $370  for  the  repairs  may  be  deducted  from  the  income, 
if  it  amounts  to  that  sum;  if  not,  then  to  cancel  the  income,  what- 
ever it  may  be. 

The  claim  for  insurance  should  be  disallowed.  It  does  not  appear 
that  it  was  procured  for  the  plaintiff,  or  in  her  interest,  or  with  her 
knowledge,  or  that  she  has  ever  received  or  accepted  any  benefit 
arising  from  it. 

Case  discharged. 


5.   Transfer,   Descent,   etc. 

BABBITT  v.  DAY. 

41  New  Jersey  Equity   392.  —  1S86. 
[Reported  herein  at  p.  685.]  ' 


III.  Partition. 


1.  Voluntary. 
RECTOR  v.  WAUGH. 

17  Missouri,  13. —  1852. 
[Reported  herein  at  p.  511.]  3 


'See  Overman   v.  Sasser,  \<.   310  tupra,  and  Ferguson  v.  Tweedy,  p.  628  supra. 
-  Ed 
•See  also  Ferguson  v.  Tweedy,  tupra,  p.  628.     Chap.  472,  laws  of  1S80.  —  Ed. 


III.  2.  PARTITION.  979 

2.    Compulsory.1 

WALKER  v.  SHERMAN. 

20  Wendell  (N.  Y.),  636.  —  1839. 

[Reported  herein  at  p.  218.]  2 

1  See  New  York  Code  of  Civil  Procedure,  §§  1532-1595.  —  Ed. 

'See  also  IVass  v.  Bucknam,  p.  640,  supra.  For  a  sketch  of  the  history  of  com- 
pulsory partition,  see  Mead  v.  Mitchell,  5  Abb.  Pr.  (N.  Y.),  92  (aff'd  17  N.  Y. 
210).  —  Ed. 


PART   V. 
Of  the  Law  of  Persons  in  Relation  to  Land. 


chapter  I. 

Aliens. 

I.  Capacity  to  take  and  hold.1 

FOSS  v.  CRISP. 

20  Pickering  (Mass.),  121.  —  183S. 
\_Reported  herein  at  p.  645.] 


PRIEST  v.  CUMMINGS. 

20  Wendell  (N.  Y.),  338.  —  1S3S. 

[Reported  herein  at  p.  692.] 


CRAIG  v.  LESLIE. 

3  WHEAroN(U.  S.),  563.  — 1818. 
[Reported  herein  at  p.  71.] 


II.  Capacity  to  transfer  or  transmit  title. 

Shaw,  C.  J.,  in  SCANLAN  v.  WRIGHT. 

13  Pickering,  523. — 1833. 

In    regard    to   the   other   objection,    that    Bishop    Cheverus,    by 
accepting  a  civil  and  ecclesiastical   office   in   France,  renounced  his 

1  It  is  not  i  1 1 1  •  - n •  1  r  '1  i"  Ural  very  fully  the  subjects  in  Part  V.  They  belong  to 
the  course  on  the  "  Law  of  Domestic  Relations  and  Persons."  For  other  cases 
on  these  topics  see  Woodruff's  "  Cases  on  the  Law  of  Domestic  Relations  and 
Pei  ons."  The  present  New  York  law  as  to  the  capacity  of  aliens  to  take, 
hold,  transmit  and  transfer  Interests  in  land  will  be  found  in  the  N.  Y.  R.  P.  L., 
See  also  U.,  '  '  1  and  2.  E  d 
[980] 


II.]  ALIENS.  981 

American  allegiance,  and- so  became  an  alien,  and  that  therefore 
nothing  passed  by  his  deed,  the  consequence  which  is  suggested 
would  not  follow  if  the  fact  were  proved.  Were  he  in  all  respects 
an  alien,  having  been  once  well  seised  of  an  indefeasible  estate,  his 
conveyance  would  not  be  void;  it  would  vest  an  estate  in  his  grantee, 
subject  only  to  be  defeated  by  the  government. 

The  other  objections  to  the  petitioner's  title  cannot  be  sustained, 
especially  when  taken  by  a  stranger,  one  who  does  not  himself  claim 
the  same  title.  So  far  as  the  alienage  of  Thomas  Scanlan  is  relied 
upon,  as  disabling  him  to  join  with  his  wife,  in  this  petition,  it  is  in 
abatement  only,  and  comes  too  late.  If  it  be  contended  that  he 
could  not  take  and  become  seised  jointly  with  his  wife  in  her  right, 
this  is  contrary  to  the  rule  of  law,  which  is,  that  an  alien  may  take 
but  cannot  hold  against  the  government;  he  takes  a  defeasible 
estate,  subject  to  escheat,  at  the  suit  of  the  government.  But  till 
office  found  he  is  seised.  If  it  be  contended  that  on  a  feoffment  to 
the  wife  the  husband  becomes  seized  by  act  of  law,  and  as  in  case  of 
descent  the  law  will  not  cast  seisin  of  an  estate  upon  one  who  can- 
not hold  it,  the  consequence  would  be  that  the  wife  would  remain 
seised  alone,  and  that  she  must  petition  by  her  husband  as  guardian 
or  next  friend,  instead  of  joining  with  him  in  the  usual  form.  But 
this  would  be  mere  matter  of  form,  not  affecting  the  title  or  merits 
of  the  case. 


CHAPTER  II. 
Infants. 
I.  Nature  of  an  infant's  transfer. 

WELCH  v.  BUNCE. 
83  Indiana,  382.  —  18S2. 

Suit  to  set  aside  a  deed  and  recover  the  possession  of  certain  lands. 
Plaintiff  below  had  inherited  the  lands  from  her  father  and,  her 
husband  joining  with  her  in  the  deed,  had  conveyed  them  to  Welch. 
The  complaint  alleges  that  "  at  the  time  of  executing  said  convey- 
ance this  plaintiff  was  a  minor,  under  the  age  of  twenty-one  years, 
and  is  yet,"  and  that  on  a  certain  day  named  she  had  repudiated  the 
conveyance.  The  defendant  demurred  for  the  reason,  among 
others,  that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  good  cause  of  action.  The  demurrer  was  overruled  and  defendant 
appeals  to  this  court. 

Howk,  J.  —  *  *  *  This  action  was  commenced  on  the  3d  of 
November,  1879,  and  it  was  alleged  in  the  complaint  then  filed  that 
the  appellee,  Nancy  Bunce,  was  then  "  a  minor,  under  the  age  of 
twenty-one  years,"  and  that  she  had  disaffirmed  her  conveyance 
of  the  real  estate  to  the  appellant  on  the  25th  of  October,  1879, 
preceding  the  commencement  of  this  suit.  It  is  clear,  therefore. 
that  the  question  above  stated  '  is  fairly  presented  for  decision  by 
the  demurrer  to  the  complaint.  We  are  of  the  opinion  that  the 
question  stated  must  be  answered  in  the  negative.  It  would  seem 
to  be  settled  by  the  decisions  of  this  court  that  an  infant  cannot 
disaffirm  or  avoid  his  or  her  conveyance  of  real  estate,  simply  on 
the  ground  of  infancy,  which  is  the  only  ground  relied  upon  in  the 
<  ase  at  bar,  until  his  or  her  arrival  at  majority.  Chapman  v.  Chap- 
man, 13  I  nd.  396;  Miles  v.  Linger  man,  24  Ind.  385;  Law  v.  Long,  41 
ln.1.  586. 


1  "  Can  an  infant  disaffirm  his  or  her  conveyance  of  real  estate  during  infancy, 
or  before  he  <<r  she  arrives  at  the  full  and   lawful  age  of  twenty-one  years." 
Ed. 

[982] 


I.]  NATURE    OF   INFANT'S   TRANSFER.  983 

The  appellee's  counsel,  as  we  understand  their  argument,  con- 
cede that  the  rule  of  law,  on  the  subject  under  consideration,  was 
formerly  as  we  have  stated  it.  But  counsel  claim  that  this  rule  was 
changed  by  the  provisions  of  §  10  of  the  Civil  Code  of  1852,  and 
that  this  section  has  been  overlooked  by  this  court  in  its  more 
recent  decisions  on  the  subject  of  the  rule.  This  section  10  pro- 
vides as  follows:  "  When  an  infant  shall  have  a  right  of  action,  such 
infant  shall  be  entitled  to  maintain  suit  thereon,  and  the  same  shall 
not  be  delayed  or  deferred  on  account  of  such  infant  not  being  at 
full  age."  2  R.  S.  1876,  p.  37;  §  12,  Civil  Code  of  1881;  §  255,  R. 
S.  1881. 

We  are  of  the  opinion,  however,  that  the  section  quoted  has 
no  application  to  the  question  under  consideration,  and,  there- 
fore, makes  no  change  in  the  rule  of  law  in  relation  thereto.  An 
infant  has  no  right  of  action  as  to  lands  conveyed  away  by  him  or 
her,  simply  on  the  grounds  of  infancy,  until  such  conveyance  has 
been  disaffirmed  or  avoided.  An  infant's  conveyance  of  real  estate 
is  not  void,  but  is  merely  voidable;  and  it  cannot  be  avoided  or  dis- 
affirmed, simply  on  the  score  of  infancy,  until  the  infant  has  arrived 
at  majority.  It  seems  to  us,  therefore,  that  the  facts  stated  in 
the  complaint,  in  the  case  now  before  us,  showed  clearly  that  the 
appellee,  Nancy  Bunce,  had  no  right  or  cause  of  action  against  the 
appellant,  at  the  commencement  of  this  suit,  and  that  the  demurrer 
to  the  complaint,  for  the  want  of  sufficient  facts,  ought  to  have  been 
sustained. 

Some  other  points,  of  minor  importance,  are  noticed,  rather  than 
discussed,  by  the  appellant's  counsel.  We  deem  it  unnecessary  for 
us  to  consider  or  decide  these  points,  as  the  judgment  must  be 
reversed  for  the  reasons  already  given. 

The  judgment  is  reversed,  with  costs,  and  the  cause  is  remanded 
with  instructions  to  sustain  the  demurrer  to  the  complaint,  and  for 
further  proceedings  not  inconsistent  with  this  opinion.1 

1  But  the  infant  may  enter  while  under  age,  and  continue  to  take  the  profits 
until  he  is  of  age,  when  he  may  either  affirm  or  disaffirm.  Bool  v.  Mix,  17 
Wend.  119.  —  Ed. 


984  LAW    OF   PERSONS.  [PT.  V.   CH.  II. 

GREEN  v.  GREEN. 
69  New  York,  553.  —  1877. 

Church,  C.  J.  — The  important  question  in  this  case  is  whether 
it  was  necessary  for  the  defendant  to  restore  the  consideration 
received  for  the  transfer  of  the  land  to  the  plaintiff  to  entitle  him  to 
rescind  the  contract.  The  defendant  is  a  son  of  the  plaintiff.  He 
conveyed  to  the  plaintiff  the  premises  in  question  when  under  the 
age  of  twenty-one  years,  for  which  he  received  the  sum  of  $400. 
It  appeared  affirmatively  that  the  son  had  used  up,  lost,  or  squan- 
dered the  money  before  he  became  of  age,  and  had  no  part  of  it, 
nor  any  other  property  except  the  land  at  the  time  of  arriving  at 
age.  After  a  careful  examination  of  the  authorities  and  the  con- 
flicting opinions  below,  we  are  inclined  to  concur  with  the  opinion 
of  Gilbert,  J  ,  in  affirmance  of  the  judgment.  We  do  not  deem  it 
profitable  to  review  the  authorities  upon  the  question,  and  do  not 
intend  to  extend  our  decision  beyond  the  principal  facts  involved  in 
this  case. 

There  are  expressions  of  judges,  and  general  rules  laid  down  by 
text  writers,  and  some  cases  which  seem  to  favor  the  doctrine  con- 
tended for  by  the  appellant,  but  in  nearly  all  of  them  there  is  a  man- 
ifest distinction  in  the  facts.  The  weight  of  authority  is  to  the 
contrary  effect.  10  Peters  U.  S.  58,  74;  97  Mass.  508;  6  Gray,  279; 
27  Vt.  268;  100  Mass.  174.  These  and  like  authorities,  we  think, 
accord  with  the  general  principles  of  the  law  for  the  protection  of 
infants.  The  right  to  repudiate  is  based  upon  the  incapacity  of  the 
infant  to  contract,  and  the  incapacity  applies  as  well  to  the  avails 
as  to  the  property  itself,  and  when  the  avails  of  the  property  are 
improvidently  spent  or  lost  by  speculation  or  otherwise  during 
minority,  the  infant  should  not  be  held  responsible  for  an  inability 
to  restore  them.  To  do  so  would  operate  as  a  serious  restriction 
upon  the  right  of  an  infant  to  avoid  his  contract,  and  in  many  cases 
would  destroy  the  right  altogether.  A  person  purchasing  real  estate 
of  an  infant,  knowing  the  fact,  and  especially  the  father,  must  and 
ought  to  take  the  risk  of  the  avoidance  of  the  contract  by  the  infant 
after  arriving  at  maturity.  The  right  to  rescind  is  a  legal  right 
established  for  the  protection  of  the  infant,  and  to  make  it  depend- 
ent upon  performing  an  impossibility,  which  impossibility  has 
resulted  from  ants  which  the  law  presumes  him  incapable  of  perform- 
ing, would  tend  to  impair  the  right  and  withdraw  the  protection. 
Both  upon  authority  and  principle  we  think  a  restoration  of  the  con- 
sideration could  not  be  exacted  as  a  condition  to  a  rescission  on  the 
part  of  the  defendant. 


II.]  INFANTS.  985 

Mere  acquiescence  for  three  years  after  arriving  at  age  without 
any  affirmative  act  was  not  a  ratification.  11  J.  R.  539;  14  Id.  124; 
23  Maine  R.  517.  The  entry  made  by  the  defendant  in  this  case  for 
the  purpose  of  disaffirming  the  contract  with  notice  of  such  inten- 
tion was  sufficient  to  entitle  him  to  recover.      17  Wend.  120. 

The  judgment  must  be  affirmed.1 


II.  Effect  of  judicial  sales  on  legal  character  of  infant's  interest  in 
realty. 

MARSH  v.  BERRIER. 

6  Iredell's  Equity  (N.  C),  524.  —  1850. 
\Reportcd  herein  at  p.  70.  ]5 

1  See  the  New  York  statutes  as  to  infant's  powers  to  convey.  §  3  R.  P.  L.  For 
special  proceedings  for  sale  of  infant's  real  estate,  see  Code  Civ.  Pro.,  §§  2345- 
2364.  —  Ed. 

a  See  also  §  2359  N.  Y.  Code  Civ.  Pro.  —  Ed. 


CHAPTER  III. 
Married  Women. 
I.  Husband's  right  to  dissent  to  devise  or  conveyance  to  wife. 
BAXTER  v.  SMITH. 

6  BlNNEY,  427.  —  1814. 

Tilghman,  C.  J.  —  It  was  given  in  charge  by  the  president  of  the 
Court  of  Common  Pleas  that  the  lease  was  void  because  made  to  a 
married  woman,  against  whom  no  action  could  be  supported  for  the 
non-performance  of  her  part  of  the  agreement.  He  took  for  granted 
from  the  evidence  that  the  husband  did  not  assent.  This  broad 
position  took  from  the  jury  all  right  of  considering  the  circum- 
stances of  the  case;  and  it  appears  to  me  that  the  president  went 
too  far  in  saying  that  the  lease  was  void,  because  no  action  lay 
against  the  woman.  For  granting  that  no  action  lay,  yet  if  in  fact 
all  the  stipulations  on  her  part  were  complied  with,  both  during  her 
husband's  life  and  afterwards,  neither  Finley  himself,  who  had 
received  the  benefit  of  those  stipulations,  nor  the  plaintiffs  who 
claim  under  his  will,  would  be  permitted  to  aver  that  the  lease  was 
void,  such  averment  being  against  all  equity  and  good  conscience. 
A  married  woman  may  take  by  purchase  unless  her  husband 
expressly  dissents.  So  that  the  jury  should  have  been  instructed 
to  consider  whether  from  the  direct  or  circumstantial  evidence 
George  Baxter,  the  defendant's  husband,  had  assented  to  this  lease, 
or  whether  the  terms  agreed  to  by  his  wife  had  been  complied  with, 
and  in  either  case,  if  their  opinion  should  be  in  the  affirmative,  the 
lease  was  valid  and  the  plaintiffs  ought  not  to  recover.  I  give  no 
opinion  on  the  evidence,  which  is  sent  up  with  the  record,  that  being 
a  matter  not  proper  for  our  consideration.  On  the  whole,  I  am  of 
opinion  that  there  was  error  in  the  judge's  charge,  and  therefore 
the    judgment    should    be     reversed,    and    a    venire  facias   Jc    novo 

awarded. 

[986] 


II.]  TRANSFERS    BY    MARRIED    WOMEN.  987 

II.  Transfers  by  married  women. 

Jewitt,  J.,  in  ALBANY  FIRE  INSURANCE  CO.  v.  BAY. 

4  New  York,  9.  —  1850. 

By  the  common  law  a  married  woman  is  disabled  from  alienating 
her  lands  by  deed,  either  by  uniting  with  her  husband,  or  by  execut- 
ing it  alone.  The  only  mode  in  which  she  had  power  to  transfer  her 
title  or  interest  in  real  estate  was  by  levying  a  fine  or  suffering  a 
common  recovery,  her  deed  being  void.  1  Bl.  Com.  444;  4  Cruise's 
Dig.,  tit.  32  Deed,  ch.  11,  §  29;  Compton  v.  Collinson,  1  H.  Bl.  Rep. 
345;  Jackson  v.  Vanderheyden,  17  John.  167;  Martin  v.  Dwelly,  6 
Wend.  9;  Bool  v.  Mix,  17  id.  128;  2  Kent's  Com.  150,  1;  Gillet  v. 
Stanley,  1  Hill,  121;  5  Cruise's  Dig.,  tit.  25,  Fine,  ch.  10,  §  5; 
Constantine  v.  Van  Winkle,  2  Hill,  240.  The  husband,  as  a  general 
rule,  was  required  to  be  a  party  with  the  wife  in  levying  a  fine  for 
the  conveyance  of  her  lands;  but  she  might,  as  a  feme  sole,  levy  a 
fine  of  her  lands  without  her  husband,  and  it  would  be  valid  and 
effectual  as  against  her  and  her  heirs,  unless  it  should  be  avoided 
by  the  husband  during  the  coverture,  which  he  might  do  for  the 
benefit  of  the  wife  as  well  as  of  himself.  1  Preston  on  Abst.  336; 
Com.  Dig.,  tit.  Baron  and  Feme,  G.  88;  Mary  Portingtons  Case, 
10  Coke,  43,  p.  322.  Lord  Loughborough,  in  Compton  v.  Collinson, 
supra,  said  that  it  had  been  settled  ever  since  the  case  in  the  17  Ed. 
3,  Year  Book  17  Ed.  3,  52,  78,  that  if  a  fine  be  levied  by  a  feme 
covert  without  her  husband,  it  shall  bind  her  and  her  heirs,  if  it  be 
not  avoided  by  the  husband;  and  that  both  Rolle  and  Comyns  seem 
to  intimate  that  the  law  would  be  the  same  as  to  a  recovery.  In 
the  same  case,  page  345,  it  was  said,  in  reference  to  the  power  of  a 
feme  covert  to  dispose  of  her  lands,  that  it  would  be  more  accurate 
to  state  the  law  to  be  that  a  married  woman  can  make  no  convey- 
ance of  her  lands,  except  by  fine  or  recovery,  and  that  a  fine  levied 
by  her  alone  is  avoidable  only  by  her  husband. 

The  disability  of  a  married  woman  to  convey  her  lands  by  deed 
was  not  supposed  to  arise  from  want  of  reason,  but  because  by  her 
marriage  she  was  placed  under  the  power  and  protection  of  her 
husband;  and  it  was  upon  that  ground  that  the  separate  examina- 
tion of  such  woman  on  a  fine  was  good,  because  when  delivered 
from  her  husband  her  judgment  was  supposed  to  be  free.  Hearle 
v.  Greenbank^  3  At.k.  712;  Compton  v.  Collinson,  supra;  2  Kent's 
Com.  150;  Durant  v.  Ritchie,  4  Mason,  54.  Judge  Story,  in  the 
case  of  Durant  v.  Ritchie,  said  that  fines,  as  a  mode  of  conveyance, 
did   not  appear  ever  to    have  been    adopted   in   this  country;  and 


9§8  LAW    OF   PERSONS.  [PT.   V.  CH.  III. 

common  recoveries,  though  resorted  to  for  other  purposes,  were  not 
known  to  have  been  used  for  transfer  of  the  estates  of  femes  covert. 
Thompson,  Ch.  J.,  in  Jackson  v.  Gilchrist,  15  John.  115,  in  regard 
to  the  alienation  of  lands  by  married  women,  remarked  that  the 
common-law  modes,  by  fine  and  recovery,  never  were  in  use  here. 

The  great  object  which  the  common  law  aimed  at  was  to  ascer- 
tain whether  the  wife,  in  the  transfer  of  her  estate  or  interest  in  real 
property,  acted  under  fear  or  compulsion  of  her  husband.  In  a  con- 
veyance by  fine  and  recovery,  the  wife  was  privately  examined  by 
the  court,  as  to  her  voluntary  consent,  which  removed  the  general 
presumption  of  the  law  that  she  was  acting  under  the  compulsion  of 
her  husband.  2  Bl.  Com.  355;  5  Cruise's  Dig.,  tit.  35,  §§  7,  8,  9; 
Bool  v.  Mix,  17  Wend.    128. 

Instead  of  using  fines  and  recoveries  for  the  conveyance  of  lands 
by  married  women,  under  the  government  of  the  colony  of  New 
York,  deeds  were  used  for  that  purpose,  and  upon  their  simple 
acknowledgments  by  the  grantors,  or  proof  made  by  a  subscribing 
witness  before  a  member  of  his  majesty's  council,  a  judge  of  the 
supreme  or  county  court,  or  a  master  in  chancery,  and  sometimes 
before  a  justice  of  the  peace,  without  private  examination;  and 
there  were  lands  held  under  deeds  of  married  women  not  acknowl- 
edged or  proved  even  in  the  manner  mentioned;  which  practices 
were  recited  in  the  act  of  the  16th  of  February,  1 77 1,  and  such 
deeds  were  confirmed  by  it.  As  to  future  conveyances,  it  was 
enacted  by  that  act,  that  no  estate  of  z.fe7?ie  covert  should  thereafter 
pass  by  deed  without  a  previous  acknowledgment  made  by  her, 
apart  from  her  husband  and  on  a  private  examination,  that  she  exe- 
cuted the  same  freely,  and  without  any  fear  or  compulsion  of  her 
husband.  2  Kent's  Com.  150;  Jackson  v.  Gilchrist,  15  John.  109. 
This  act  prescribing  the  form  in  which  the  deed  of  a  feme  covert 
should  be  acknowledged  in  order  to  pass  her  real  estate  has  been 
substantially  continued  in  respect  to  married  women  residing  in  this 
State  in  the  successive  revisions  of  the  laws.  2  Greenleaf,  99,  §  3; 
1  R.  L.  369,  §  3;  1  R.  S.  758,  §  io.1  No  distinction  is  made,  in 
either  of  the  statutes  referred  to,  between  the  effect  of  a  deed 
executed  by  the  husband  and  wife  for  the  conveyance  of  her  lands, 
where  the  wife  resides  in  this  State,  and  a  deed  executed  by  the 
wife  without  her  husband  for  such  purpose.  By  our  usages  and 
laws  we  have  substituted  her  deed  for  a  conveyance  of  lands  in  the 
place  of  the  common-law  mode,  by  fine.  It  is  conceded  that  it  must 
have  the  same  effect  under  our  laws,  where  the  husband  joins  with 

1  See  for  present  law  £  251  R.  P    L.  —  F.i>. 


II. j  TRANSFERS    BY    MARRIED    WOMEN.  989 

the  wife,  if  properly  acknowledged,  as  a  fine  had,  at  the  common 
law,  as  a  conveyance,  where  the  wife  joined  with  her  husband  in 
levying  it.  And  I  can  see  no  reason  why  her  deed,  properly 
acknowledged,  where  the  husband  does  not  join  with  her  in  it, 
should  not  have  at  least  as  extensive  an  effect  as  a  fine  had,  at  the 
common  law,  when  levied  by  her  alone.     *     *     * 

At  the  time  Mrs.  Treat  executed  the  mortgage  in  question,  she  was 
seised  of  the  premises  in  fee,  capable  of  holding  lands;  and  it  is  not 
pretended  that  she  was  either  an  idiot  or  a  person  of  unsound  mind, 
or  an  infant;  and  therefore  was  a  person  expressly  authorized  by 
the  statute  to  alien  her  estate  or  interest  in  lands  at  her  pleasure, 
subject  only  to  such  restrictions  and  regulations  as  were  provided 
by  law;  and  that  as  to  them  the  certificate  of  the  officer  before 
whom  she  acknowledged  the  execution  of  the  mortgages  shows  an 
exact  compliance.  The  defendants  insist  upon  another  restriction 
to  her  alienating  her  estate  or  interest  in  lands;  that  her  husband 
must  have  joined  with  her  in  the  conveyance  to  give  it  the  effect  to 
pass  her  estate.  I  think  that  is  answered  by  the  fact  that  there  is 
no  provision  in  our  laws  making  it  necessary  in  order  to  the  passing 
of  the  estate  or  interest  of  a  married  woman  residing  in  this  state, 
in  lands  of  which  she  is  seised  or  entitled  to,  that  her  husband 
should  join  with  her  in  the  conveyance. 

It  is  said  in  2  Kent's  Com.  152,  that  the  weight  of  authority  would 
seem  to  be  in  favor  of  the  existence  of  a  general  rule  of  law,  that 
the  husband  must  be  a  party  to  the  conveyance  or  release  of  the 
wife,  and  that  such  a  rule  was  founded  on  sound  principles,  arising 
from  the  relation  of  husband  and  wife.  It  was,  however,  admitted 
that  there  were  exceptions  to  the  rule,  and  that  it  was  not  universal 
in  its  application.     *     *     * 

The  substitute  in  favor  of  a  conveyance  by  the  wife  of  a  deed  for 
a  fine  or  common  recovery  was  made  at  an  early  day  by  most,  if  not 
all,  the  colonial  governments,  by  statutes  which  have  been  substan- 
tially continued  to  this  period  by  legislative  enactments.  These 
statutes,  in  most  cases,  have  expressly  provided  that  the  husband 
and  wife  must  join  in  the  conveyance,  to  have  the  effect  of  passing 
her  present  or  contingent  estate  or  interest  in  real  estate.  This  is 
so  as  it  respects  Maryland,  Lawrence  v.  Heiste>\  3  Har.  &  John.  371 ; 
New  Hampshire,  Massachusetts,  Vermont,  and  several  other 
States.  In  Vermont,  the  right  of  a  married  woman  to  convey  her 
lands  by  deed  is  given  by  statute  to  convey  "  by  deed  of  herself  and 
baron,"  and  making  her  separate  examination  and  acknowledgment 
necessary,  and  to  be  certified  upon  the  deed.  Sumner  v.  Conant,  10 
Vern.  Rep.  20. 


990  LAW   OF   PERSONS.  [PT.  V.  CH.  III. 

It  is  said,  2  Kent's  Com.  153,  that  the  particular  question, 
whether  the  husband  must  be  a  party  to  the  deed  of  release  by  the 
wife  of  her  dower,  to  give  it  validity,  has  never  been  judicially 
settled  in  this  State.     *     *     * 

So  far  as  judicial  decision  is  concerned  it  is  an  open  question  in 
this  State.  But  if  we  ma}'  rely  upon  the  dicta  or  casual  remarks  of 
learned  judges  bearing  upon  it  but  not  involved  in  the  questions 
determined,  it  may  be  as  well  sustained  that  a  feme  covert  can, 
during  her  coverture,  part  with  her  interest  in  her  real  estate  by 
deed  without   her  husband,  as   that  she  must  join  with  him  to  effect 

I  have  come  to  the  conclusion  that  a  feme  covert  residing  within 
this  State  has  power  to  convey  her  estate  or  interest  in  her  land  by 
her  separate  deed  without  her  husband,  if  she  acknowledge,  before 
a  proper  officer,  on  a  private  examination  apart  from  her  husband, 
that  she  executed  such  deed  freely  and  without  any  fear  or  compul- 
sion of  her  husband,  and  such  acknowledgment  is  properly  certified 
by  such  officer;  and  therefore  that  the  mortgages  executed  by  Mrs. 
Treat  are  valid  and  subsisting  liens  on  lot  No.  1. 


III.  Her  power  to  devise  her  lands. 

Denio,  J.  in  WADHAMS  v.  AMERICAN  HOME  MISSIONARY 

SOCIETY. 

12  New  York,  415.  —  1855. 

An  argument  in  favor  of  this  will  has  been  deduced  from  the 
course  of  decisions  in  respect  to  testamentary  dispositions  of  real 
estate  made  by  married  women,  notwithstanding  the  prohibition 
contained  in  the  English  Statute  of  Wills,  and  which  we  have  seen 
was  re-enacted  in  this  State.  It  is  familiar  law  that,  notwithstand- 
ing this  prohibition,  a  married  woman  was  competent  to  appoint  the 
uses  of  land  where  a  power  for  that  purpose  had  been  reserved  by 
or  given  to  her  by  some  conveyance  competent  to  raise  and  to  direct 
the  execution  of  such  use,  or  where  land  had  been  conveyed  in  trust 
for  her  benefit  with  a  like  power  of  appointment,  and  this  she  might 
do  by  will  where  the  power  authorized  it.  Wills  operating  by  way 
•  if  the  appointment  of  a  use  were  common  before  the  statute  had 
authorized  a  devise  of  lands.  The  use  was  considered  as  a  thing 
distni'  t  from  the  land,  and  might  be  transferred  by  methods  which 
would  beentirely  insufficient  to  convey  the  land  itseif.  The  statute 
of  uses,  passed  a  few  years  prior  to  the  statute  of  wills,  was  designed 


III.]  MARRIED    WOMAN'S   POWER   TO    DEVISE.  99I 

to  put  an  end  to  this  distinction  by  conferring  upon  the  possessor  of 
the  use  the  legal  seisin  and  ownership  of  the  land.  The  manner  in 
which  the  intention  of  the  legislature  was  defeated  by  the  courts 
forms  one  of  the  most  curious  chapters  of  the  law  of  real  estate,  but 
it  i9  sufficient  here  to  mention  a  single  feature  of  this  system,  the 
one  which  declared  that  future  or  contingent  uses  might  be  limited 
upon  a  conveyance  in  fee,  which  would  remain  unexecuted  until 
they  were  designated  and  pointed  out  by  the  party  to  whom  the 
power  to  do  so  was  given  When  the  power  was  executed  the  per- 
son in  whose  favor  the  appointment  was  made  became  invested  with 
the  use,  and  instantly  gained  the  legal  estate  by  force  of  the  statute. 
3  Reeves'  Hist.  Eng.  Law,  365,  366;  4  Id.  247,  253,  360;  1  Sugden 
on  Powers,  12,  184. 

Now,  by  the  common  law,  a  married  woman  could  not  dispose  of 
her  legal  estate  in  lands  without  a  fine  or  recovery,  and  by  the  stat- 
ute of  wills  she  was  expressly  prohibited  from  devising  her  lands; 
but  as  the  instrument  or  attorney  of  another  she  could,  both  before 
and  since  the  statute,  convey  an  estate  in  the  same  manner  as  her 
principal,  because  the  conveyance  was  regarded  as  the  deed  of  the 
principal  and  not  of  the  attorney.  1  Sugden  on  Powers,  184; 
Thomlinson  v.  Dig/iton,  1  P.  Williams,  149.  It  follows  that  a  married 
woman  cannot  in  England,  and  could  not  in  this  country  until  the 
passage  of  the  act  respecting  married  women  in  the  year  1849,  make 
a  will  of  her  real  estate,  except  by  virtue  of  a  power  or  by  way  of 
appointing  a  use;  but  where  she  is  clothed  with  such  a  power,  her 
coverture  forms  no  impediment  to  the  transaction.  Peacock  v. 
Monck,  supra;  B radish  v.  Gibbs,  3  J.  C.  R.  523.  It  may  be  proper 
to  mention,  to  prevent  misapprehension,  though  the  doctrine  has  no 
particular  bearing  upon  this  case,  that  a  formal  conveyance  to  uses, 
or  to  trustees  upon  trusts  to  be  executed  by  virtue  of  a  power,  is 
unnecessary;  and  that  marriage  articles,  by  which  the  husband 
agrees  that  his  intended  wife  may  dispose  of  her  real  estate,  will  be 
enforced  in  the  same  manner  as  though  there  had  been  a  formal  con- 
veyance. Lord  Hardvvicke,  in  Peacock  v.  Monck,  expressed  a  doubt 
whether  a  simple  agreement  between  husband  and  wife  would  be 
sufficient;  but  the  cases  since  that  time  have  definitely  settled  the 
question  that  a  court  of  chancery,  acting  upon  the  consciences  of 
the  parties  and  considering  that  done  which  they  had  agreed  to  do, 
will  sustain  an  appointment  under  the  provisions  of  an  ante-nuptial 
contract,  simply  executory  in  its  terms.  Wright  v.  Cadogan,  6 
Brown's  P.  C.  156;  Rippon  v.  Dawding,  Ambler,  565;  B radish  v. 
Gibbs,  supra. 


992  LAW    OF   PERSONS.  [PT.  V.  CH.  III. 

Andrews,  J.  in  BROWN  v.  CLARK. 

77  New  York,  369.  —  1879. 

We  concur  in  the  conclusion  reached  by  the  surrogate  that  the 
will  was  revoked  by  the  subsequent  marriage  of  the  testatrix.*  It 
was  the  rule  of  the  common  law  that  the  marriage  of  a  woman 
operated  as  an  absolute  revocation  of  her  prior  will.  Force  and 
Hembleys  Case,  4  Co.  61.  The  reason  of  the  rule  is  stated  by 
Lord  Chancellor  Thurlow  in  Hodsden  v.  Lloyd,  2  Bro.  Ch.  534.  He 
says:  "  It  is  contrary  to  the  nature  of  the  instrument  which  must 
be  ambulatory  during  the  life  of  the  testatrix;  and  as  by  the  mar- 
riage she  disables  herself  from  making  any  other  will,  this  instru- 
ment ceases  to  be  of  that  sort,  and  must  be  void."  The  rule  that 
the  marriage  of  a  feme  sole  revoked  her  will  was  made  a  part  of  the 
statute  law  of -this  State  by  the  Revised  Statutes.  2  R.  S.  64,  §  44. 
The  language  of  the  statute  that  the  will  of  an  unmarried  woman 
shall  be  deemed  revoked  by  her  subsequent  marriage  is  the  declara- 
tion of  an  absolute  rule.  The  statute  does  not  make  the  marriage  a 
presumptive  revocation  which  may  be  rebutted  by  proof  of  a  con- 
trary intention,  but  makes  it  operate  eo  instanti  as  a  revocation.  4 
Kent,  528.  It  is  claimed  by  the  contestants  that  the  testamentary 
capacity  conferred  upon  married  women  by  the  recent  statutes  in  this 
State  takes  away  the  reason  of  the  rule  of  the  common  law,  and  that 
upon  the  maxim  cessa/iie  ratione  legis,  cessat  lex  ipsa,  the  rule  should 
be  deemed  to  be  abrogated.  Upon  the  same  ground  it  might  have 
been  urged  at  common  law  that  the  marriage  of  a  feme  sole  should 
only  be  deemed  a  revocation  or  suspension  of  her  prior  will  during 
the  marriage,  and  that  when  the  woman's  testamentary  capacity  was 
restored  by  the  death  of  her  husband,  leaving  her  surviving,  the  will 
should  be  revived;  but  the  contrary  was  well  settled.  Force  and 
Urmblefs  Case,  1  Jarman,  106;  4  Kent,  598.  But  the  courts  cannot 
dispense  with  a  statutory  rule  because  it  may  appear  that  the  policy 
upon  which  it  was  established  has  ceased.  The  married  women  acts 
confer  testamentary  capacity  upon  married  women,  but  they  do  not 
undertake  to  interfere  with  or  abrogate  the  statute  prescribing  the 
effect  of  marriage  as  a  revocation.  It  was  quite  consistent  that  the 
Legislature  should  have  intended  to  leave  the  statute  of  1830  in 
for>  e,  although  the  new  statutes  took  away  the  reason  upon  which 
it  was  based.  The  Legislature  may  have  deemed  it  proper  to  con- 
tinue it  for  the  reason  that  the  new  relation  created  by  the  marriage 
would  be  likely  to  induce  a  change  of  testamentary  intention,  and 
that  a  disposition  by  a  married  woman  of  her  property  by  will  should 
depend  upon  a  new  testamentary  act  after  the  marriage. 


IV.]  MARRIED   WOMAN'S   SEPARATE    ESI  ATE.  993 

IV.  Married  woman's  separate  estate  and  her  power  to  control  and 
dispose  of  same. 

JAQUES  v.  TRUSTEES,  etc. 

17  Johnson  (N.  Y.),  548.  —  1820. 

[Reported  herein  at  p.  93. J 


PULLEN  v.  RIANHARD. 

1  Wharton  (Pa.),  514.  — 1836. 
[Reported  herein  at  p.  95.] 


FEARS  v.  BROOKS. 
12  Georgia,  195.  —  r852. 
[Reported  herein  at  p.  571.] 
LAW  OF  PROP.  IN  LAND  —  53 


CHAPTER  IV. 
Persons  of  Unsound  Mind. 
ALLIS  v.  BILLINGS. 

6  Metcalf  (Mass.),  415.  —  1843. 

Writ  of  entry  to  recover  certain  lands.  Tenant  gave  in  evidence 
a  deed  from  demandant.  Demandant  offered  to  prove  that  he  was 
insane  when  the  deed  was  given.  The  judge  instructed  the  jury 
"  that  if  demandant  was  not  of  sane  mind  when  he  made  the  deed, 
it  was  void  absolutely,  and  not  voidable  merely,  and  that  the  receipt 
of  money  on  the  note  would  not  bar  an  action,  though  demandant 
was  sane  when  he  received  it."  The  jury  found  that  demandant  was 
insane  when  the  deed  was  made. 

New  trial  to  be  granted  if  ruling  of  judge  was  incorrect;  otherwise 
judgment  to  be  rendered  for  the  demandant  on  the  verdict. 

Dewey,  J.  — The  question  raised  in  the  present  case  is,  whether 
the  deed  of  one  who  is  insane  at  the  time  of  the  execution  thereof 
is  void  absolutely  or  merely  voidable. 

The  term  "  void,"  as  applicable  to  conveyances  or  other  agree- 
ments, has  not  at  all  times  been  used  with  technical  precision,  nor 
restricted  to  its  peculiar  and  limited  sense  as  contradistinguished 
from  "  voidable;"  it  being  frequently  introduced,  even  by  legal 
writers  and  jurists,  where  the  purpose  is  nothing  further  than  to 
indicate  that  a  contract  was  invalid,  and  not  binding  in  law.  But 
the  distinction  between  the  terms  "  void  "  and  "  voidable,"  in  their 
application  to  contracts,  is  often  one  of  great  practical  importance; 
and  whenever  entire  technical  accuracy  is  required,  the  term 
"  void  "  can  only  be  properly  applied  to  those  contracts  that  are  of 
no  effect  whatsoever;  such  as  are  a  mere  nullity,  and  incapable  of 
confirmation  or  ratification. 

This  question,  then,  arises:  1^  the  deed  of  a  person  non compos 
mentis  of  such  a  character  that  it  is  incapable  of  confirmation?  This 
point  is  nol  now  for  the  first  time  raised,  but  lias  been  the  subject 
of  commenl  both  by  elementary  writers  and  in  judicial  opinions. 
Mr.  fustice  Blackstone,  in  Ins  Commentaries,  vol.  ii.,  p.  291,  states 

[994] 


CHAP.  IV.]  FERSONS    OF   UNSOUND    MIND.  995 

the  doctrine  thus:  "  Idiots,  and  persons  of  non-sane  memory,  infants 
and  persons  under  duress,  are  not  totally  disabled  to  convey  or  pur- 
chase, but  sub  modo  only,  for  their  conveyances  and  purchases  are 
voidable,  but  not  actually  void." 

Chancellor  Kent  says:  "By  the  common  law  a  deed  made  by  a 
person  non  compos  is  voidable  only,  and  not  void."  2  Kent's  Com., 
4th  ed.,  451.  In  Wait  v.  Maxwell,  5  Pick.  217,  this  court  adopted 
the  same  principle,  and  directly  ruled  that  the  deed  of  a  non  compos 
not  under  guardianship  was  not  void,  but  voidable.  Such  a  deed 
conveys  a  seisin  to  the  grantee,  and  the  deed,  to  that  extent,  is  valid 
until,  by  entry  or  action,  the  same  is  avoided.  Mitchell  v.  Kingman, 
5  Pick.  431,  is  to  the  like  effect.  In  Seaver  v.  Phelps,  11  Pick.  305, 
the  contracts  of  insane  persons  are  noticed  as  contracts  not  abso- 
lutely void,  but  voidable. 

It  may  seem  somewhat  absurd  to  hold  that  a  deed  should  have 
any  effect  when  wanting  in  one  of  the  essential  elements  of  a  valid 
contract,  viz.,  that  of  parties  capable  of  giving  an  assent  to  such  a 
contract.  But  this  objection  as  strongly  applies  to  cases  of  deeds 
executed  by  infants,  who  are  alike  wanting  in  capacity  to  make  a 
binding  contract.  Yet  this  principle  of  giving  so  much  effect  to  the 
contract  as  removes  it  beyond  that  of  a  mere  nullity,  and  renders  it 
to  some  present  purposes  effectual  and  susceptible  of  complete 
future  ratification,  is  well  settled  and  understood  as  to  infants  who 
enter  into  contracts;  and  it  will  be  found  that  there  is  a  common 
principle  on  this  subject,  alike  applicable  to  the  inability  of  a  con- 
tracting party,  arising  from  lunacy  or  infancy.  The  civil  and  the 
common-law  writers  group  together  idiots,  madmen,  and  infants,  as 
parties  incapable  of  contracting  for  want  of  a  rational  and  deliberate 
consenting  mind.  1  Story  on  Eq.,  §  223,  and  authorities  there  cited. 
It  is  true  that  the  rule  of  the  common  law,  as  held  at  one  time, 
seemed  to  sanction,  in  one  particular,  a  most  unwarrantable  distinc- 
tion between  the  cases  of  deeds  made  by  persons  non  compos  and 
those  made  by  infants;  holding  that  the  former  could  not  be  avoided 
by  the  party,  upon  the  ground  that  no  man  of  full  age  should  be 
admitted  to  stultify  himself,  although  it  allowed  privies  in  blood,  or 
privies  in  representation,  after  the  death  of  the  non  compos,  to  avoid 
the  deed,  on  the  ground  of  incapacity  in  the  grantor.  This  distinc- 
tion has  not  been  adopted  by  our  courts.  On  the  contrary,  we  hold 
that  such  conveyance  by  one  non  compos  mentis  may  be  avoided  by 
himself,  as  in  the  case  of  an  infant  grantor.  This  principle  was 
directly  recognized  in  the  case  of  Mitchell  v.  Kingman,  5  Pick.  431. 
Indeed,  the  English  rule  has,  in  modern  times,  been  often  ques- 
tioned in   England;  and   in   the   courts   of  our  sister  States  it  has 


996  LAW   OF   PERSONS.  [PART   V. 

received  little  if  any  sanction.      1  Story   on   Eq.,  §   225,  and  cases 
there  cited. 

It  was  urged  by  the  demandant's  counsel  that  the  doctrine  that 
the  deed  of  a  non  compos  person  was  voidable  only,  and  not  void, 
was  to  be  limited  to  feoffments,  or  cases  where  there  is  a  livery  of 
seisin,  or  what  is  equivalent,  and  would  not  embrace  a  conveyance 
by  an  unrecorded  deed.  But  we  do  not  think  that  such  a  distinction 
can  be  maintained.  As  between  the  grantor  and  the  grantee,  such 
unrecorded  deed  is  good  and  effectual,  by  force  of  our  statute;  and 
the  effect  of  such  a  conveyance  would  be  to  vest  the  title  of  the 
grantor  in  the  grantee  immediately  upon  the  execution  of  the  deed, 
and  before  the  same  is  recorded  Marshall  v.  Fisk,  6  Mass.  31.  A 
deed  made  in  proper  form,  and  duly  acknowledged  and  recorded,  is, 
in  this  commonwealth,  equivalent  to  a  feoffment  with  livery  of 
seisin.  Somes  v.  Breiuer,  2  Pick.  197.  Without  the  registry,  where 
the  delivery  of  the  deed  is  accompanied  by  the  surrender  of  the  pos- 
session of  the  conveyed  premises  to  the  grantee,  the  effect  would  be 
the  same,  as  to  the  conveyance  by  a  nan  compos,  as  would  result 
from  a  feoffment  made  by  him.  A  deed  of  bargain  and  sale,  it  is 
said,  places  the  grantee  upon  the  footing  of  a  feoffment,  as  it  passes 
the  estate  by  the  delivery  of  the  hand;  such  grants  or  deeds  as  take 
effect  by  delivery  of  the  hand  being  voidable  only.  Somes  v. 
Brewer,  2  Pick.  197;  Zouch  v.  Parsons,  3  Burr.  1804.  We  come, 
therefore,  to  the  result  that  the  deeds  of  infants  and  insane  per- 
sons are  alike  voidable,  but  neither  are  absolutely  void.     *     *     * 

The  presiding  judge  ruled,  as  a  matter  of  law,  that  a  deed  of  an 
insane  person  was  absolutely  void.  Under  this  ruling  all  that  was 
required  of  the  demandant,  to  entitle  himself  to  a  verdict  in  his 
favor  was  to  show  a  temporary  insanity  at  the  time  of  the  execution 
of  the  deed.  No  matter  what  might  have  occurred  subsequently, 
or  how  soon  afterwards  the  demandant  might  have  been  restored  to 
a  sound  mind;  no  matter  what  acts  of  confirmation  may  have  been 
done  by  him,  or  however  fully  he  may  have  adopted  and  ratified  the 
t  ransaction,  by  the  receipt  of  money  or  other  valuable  consideration 
paid  for  the  land;  still  the  legal  title  in  the  land  would  be  in  him. 
This  was  the  necessary  result  of  the  doctrine  The  deed  of  a  non 
<o»ifi<>\  was  absolutely  void,  while,  if  it  had  been  held  only  voidable, 
these  subsequent  acts  of  the  party  might  materially  affect  the  ver- 
dict <>f  the  jury.  But  adopting,  as  we  do,  the  principle  that  the  deed 
of  an  insane  person  is  only  voidable,  this,  while  it  gives  the  insane 
grantor  full  power  and  authority  to  avoid  his  deed,  and  thus  fur- 
nishes full  protecion  to  him  against  all  acts  injurious  to  his  interests, 
done  while  he  was  /ton  compos,  also  entitles  the  other  party  to  set  up 


CHAP.  IV.]  PERSONS   OF   UNSOUND    MIND.  997 

the  deed,  if  he  can  show  a  ratification  or  adoption  of  it  by  the 
grantor,  after  he  is  restored  to  a  sound  mind.  If  the  grantor,  when 
thus  capable  of  acting,  and  with  full  knowledge  of  his  previous  acts, 
and  of  the  nature  and  extent  of  them,  will  deliberately  adopt  and 
ratify  them;  if  he  will  knowingly,  and  in  the  exercise  of  his  proper 
faculties,  take  the  benefit  of  a  contract  made  while  he  was  insane  — 
it  is  competent  for  him  to  do  so.  But  the  consequence  will  be  to 
give  force,  effect,  and  legal  validity  to  his  contract,  which  was 
before  voidable. 

In  the  present  case,  therefore,  upon  the  point  first  relied  upon  in 
the  defense,  viz.:  that  the  demandant  was  insane  when  he  executed 
the  deed,  the  jury  should  have  been  instructed  that  this  fact,  if 
established,  rendered  the  deed  voidable,  and  that  it  was  competent 
for  the  demandant  to  avoid  it  on  that  ground,  if  not  estopped  by  his 
subsequent  acts,  done  while  in  his  right  mind;  but  that  a  voidable 
deed  was  capable  of  confirmation;  and  that,  if  the  grantor,  in  his 
lucid  intervals,  or  after  a  general  restoration  to  sanity,  then  being 
of  sound  mind,  and  well  knowing  and  understanding  the  nature  of 
the  contract,  ratified  it,  adopted  it  as  a  valid  contract,  and  partici- 
pated in  the  benefits  of  it,  by  receiving  from  the  purchaser  the  pur- 
chase-money due  on  the  contract,  this  would  give  effect  to  the  deed, 
and  render  the  same  valid  in  the  hands  of  the  grantee,  and  would 
thus  become  effectual  to  pass  the  lands,  and  divest  the  title  of  the 
grantor.  Such  instructions  would  have  presented  the  question  in 
issue  in  a  different  aspect  to  the  jury,  and  might  have  led  to  a  differ- 
ent result  upon  the  only  point  upon  which  they  passed. 

Verdict  set  aside,  and  a  new  trial  granted.1 

1  See,  however,  Aldrich  v.  Bailey,  132  N.  Y.  85.     See  the  New  York  statutes, 
§3,  R.  PL;  §§  2345  2364,  Code  Civ.  Pro.  —  Ed. 


CHAPTER  V. 

Corporations. 

i.  Power  to  Take  and  Hold. 

NICOLL  v.  N.  Y.  &  E.  RAILROAD  CO. 
12  New  York,  121.  —  1854. 
[Reported  herein  at  p.  527.] 


WHITE  v.  HOWARD. 

46  New  York,  144.  —  1871. 

[Reported  herein  at  p.  47.] 


CONGREGATIONAL  SOCIETY  v.  STARK. 

34  Vermont,  243.  —  1S61. 
[Reported  herein  at  p.  509.] 


The  Assistant  Vice-Chancellor  in  BARRY  v.   MERCHANTS 
EXCHANGE  COMPANY. 

1  Sanford's  Chancery  (N.  Y.),  280.  — 1844. 

Every  corporation,  as  such,  has  the  capacity  to  take  and  grant 
property,  and  to  contract  obligations  in  the  same  manner  as  an 
individual. 

This  is  the  general  rule.  But  corporations  are  usually  created  for 
some  limited  and  specific  purpose,  and  therefore  the  general  powers 
incident  to  a  body  corporate  at  common  law  are  restricted  by  the 
nature  and  object  of  the  institution  of  each.  And  every  such  cor- 
poration lias  power  to  make  all  contracts  which  are  necessary  and 
usual  in  the  course  of  tin-  business  it  transacts,  as  means  to  enable 
it  to  effed  such  object,  unless  expressly  prohibited  by  law,  or  the 
pp.  .  ions  of  it*-  charter, 

[998] 


CHAP.  V.]  CORPORATIONS.  999 

Upon  this  principle,  and  to  the  extent  stated,  a  corporation  in 
order  to  attain  its  legitimate  objects,  may  deal  precisely  as  an  indi- 
vidual may  who  seeks  to  accomplish  the  same  ends.  If  chartered 
for  the  purpose  of  building  a  bridge,  it  may  contract  a  debt  for  the 
labor,  the  materials,  or  the  land  upon  which  the  bridge  is  abutted. 
If  more  advantageous,  it  may  borrow  money  to  purchase  such  land 
or  materials,  or  to  pay  for  such  labor.  And  as  evidence  of  the 
indebtedness  and  as  security  for  its  repayment,  it  may  execute  to 
the  creditor  a  promissory  note,  a  bond  or  a  mortgage;  whether  the 
debt  be  for  the  money  borrowed,  or  for  the  work,  materials  or 
land.     *     *     * 

In  the  last  revision  of  our  statutes  the  Legislature  thought  proper 
to  enact  many  of  the  principles  of  the  common  law  as  then  under- 
stood. And  it  is  accordingly  provided  in  1  Rev.  Stat.  599,  600,  §  1, 
that  every  corporation  as  such  has  power,  among  other  things,  "  to 
hold,  purchase,  and  convey  such  real  and  personal  estate  as  the  pur- 
poses of  the  corporation  shall  require,  not  exceeding  the  amount 
limited  in  its  charter."  By  the  third  section,  "  In  addition  to  the 
powers  enumerated  in  the  first  section  of  this  title,  and  to  those 
expressly  given  in  its  charter,  or  in  the  act  under  which  it  is  or  shall 
be  incorporated,  no  corporation  shall  possess  or  exercise  any  cor- 
porate powers,  except  such  as  shall  be  necessary  to  the  exercise  of 
the  powers  so  enumerated  and  given."     *     *     * 

Having  examined  some  of  the  usual  capacities  of  a  corporation 
created  for  a  limited  purpose  or  object,  I  will  next  inquire  with 
what  power  it  is  clothed  in  regard  to  real  estate. 

The  Merchants'  Exchange  Company  is  expressly  authorized  by  its 
charter  to  take,  hold  and  convey  real  estate.  To  what  extent  it 
may  hold  real  estate  is  fully  discussed  in  a  subsequent  part  of  the 
case. 

At  common  law  a  corporation  aggregate  has  an  incidental  right  to 
dispose  of  both  lands  and  chattels.  Except  when  restrained  by  law, 
all  corporations  have  the  absolute  jus  disponendi,  and  in  its  exercise 
are  unlimited  as  to  objects  and  quantity.  2  Kent's  Commentaries, 
281,  2d  ed. ;  Comyn's  Digest,  Franchise,  F.  11,  18;  1  Kyd  on  Corp. 
108;  Angell  &  Ames  on  Corp.  125,  2d  ed. ;  Case  0/  Sutton's 
Hospital,  10  Reports,  30  b;  The  Mayor,  etc.,  of  Colchester  v.  Lowten, 
1  Ves.  &  Beames,  226,  244,  and  the  arguments  at  the  bar  in  that 
case,  pp.  237,  240. 

This  general  right  of  disposal  as  to  lands  was  much  circumscribed 
by  the  various  statutes  relative  to  charitable  societies  in  England; 
and  in  this  country,  where  all  grants  of  corporate  power  emanate 
from  the  legislature,  it  is  usual  to  limit  Xht  jus  disponendi,  in  religious 


IOOO  LAW    OK   PERSONS.  [PART  V. 

societies  and  others  of  a  charitable  nature.  Again,  a  corporation 
which  can  dispose  of  its  property,  may,  in  general,  dispose  of  any 
interest  in  the  same,  as  it  deems  expedient;  and  in  this  respect  has 
the  same  power  as  an  individual.  Thus,  it  is  said  that  it  may  lease, 
grant  in  fee  or  for  life,  mortgage,  and  even  make  an  assignment  for 
the  benefit  of  creditors,  giving  preferences,  where  the  law  admits  of 
such  assignments  by  natural  persons.  Angell  &  Ames  on  Corp.  126, 
and  the  cases  there  cited.  Two  of  these  cases,  Jackson  v.  Brown, 
5  Wend.  590,  and  Gordon  v.  Preston,  1  Watts,  385,  I  have  stated  at 
large,  and  they  establish  the  power  to  mortgage. 


2.  Power  to  Convey  or  Mortgage. 

AURORA  AGRICULTURAL  &  HORTICULTURAL  SOCIETY 

v.  PADDOCK. 

80  Illinois,  263.  —  1875. 

Mr.  Justice  Craig  delivered  the  opinion  of  the  Court:  This 
was  a  bill  in  equity,  brought  by  appellees,  to  foreclose  a  mortgage 
executed  by  the  Aurora  Agricultural  and  Horticultural  Society 
of  Aurora,  on  the  28th  day  of  December,  1870,  to  secure  the 
payment  of  $6,000  loaned  by  John  R.  Coulter  to  the  society.  The 
court,  on  a  hearing  of  the  cause,  rendered  a  decree  directing  a  sale 
of  the  mortgaged  premises  in  satisfaction  of  the  mortgage  debt. 

The  society  has  prosecuted  this  appeal,  and  in  order  to  obtain  a 
reversal  of  the  decree,  it  is  insisted  by  the  counsel  for  appellant: 

First.  —  That  the  society  had  no  power  whatever  to  mortgage. 

Second. — That  the  mortgage  in  question  was  wholly  unauthor- 
ized. 

The  appellant  was  organized  on  the  sixth  day  of  March,  1869, 
under  an  act  approved  Feb.  15,  1855,  which  authorized  the  incorpora- 
tion of  agricultural  societies.  Gross'  Statutes,  1869,  page  119. 
By  the  third  section  of  the  act  the  society  was  made  a  body  cor- 
porate, with  power  to  sue  and  be  sued,  to  acquire  and  hold  real 
(.state  not  exceeding  five  hundred  acres,  to  construct  the  necessary 
improvements  and  buildings  for  its  purpose,  to  have  and  employ 
capital,  machinery,  live  stock,  etc.,  not  exceeding  in  value  $10,000. 

While  it  is  true  no  section  of  the  act  confers  direct  authority  upon 
the  society  to  sell  or  mortgage  its  property,  except  upon  a  dissolu- 
tion of  the  corporation,  yet  the  act  does  not  prohibit  or  restrict  the 
SOI  iety  from  selling  or  giving  a  mortgage  upon  its  real  estate.  The 
power   to   mortgage,  when   not  expressly  given  or  denied,  must  be 


CHAP.  V.]  CORPORATIONS.  IOOI 

regarded  as  an  incident  to  the  power  to  acquire  and  hold  real  estate 
and  make  contracts. 

We  understand  it  to  be  the  common-law  rule  that  corporations 
have  an  incidental  right  to  alien  or  dispose  of  their  lands  and  per- 
sonal property,  unless  specially  restrained  by  the  act  under  which 
they  are  organized  or  by  statute. 

It  is  said  in  Angell  &  Ames  on  Corporations,  p.  153:  "Inde- 
pendent of  positive  law,  all  corporations  have  the  absolute  jus  dis- 
ponendi,  neither  limited  as  to  objects  nor  circumscribed  as  to 
quantity."  The  same  doctrine  is  clearly  laid  down  by  Kent,  vol.  2, 
page  280. 

We  are,  therefore,  of  opinion,  as  the  society  was  not  prohibited 
from  mortgaging  its  lands,  it  possessed  the  power  to  do  so  as  an 
incident  to  the  power  to  purchase  and  hold  real  estate  and  make 
contracts.     *     *     * 

Decree  affirmed. 


PART  VI. 
Of  the  Acquisition  and  Transfer  of  Interests  in  Land. 


chapter  I. 
Title  by  Original  Acquisition.1 

I.  Title  by  occupancy.* 

ATKINSON  v.  BAKER. 

4  Durnford  &  East  (Eng.),  229.  —  1791. 

[Reported  herein  at  p.  579.] 


II.  Title  by  accretion  op  accession. 

DEERFIELD  v.  ARMS. 

17  Pickering  (Mass.),  41.  —  1835. 

[Reported  herein  at  p.  108.] 

1  "A  title  is  thus  defined  by  Sir  Edward  Coke,  titulus  est justa  causa possidendi 
id  quod  nostrum  est;  or,  it  is  the  means  whereby  the  owner  of  lands  hath  the 
just  possession  of  his  property."  2  Blk.  Com.  195.  For  the  elements  of  a 
complete  title,  see  Id.,  195   199,  and  note  41  to  Hammond's  edition. 

Title  by  original  acquisition  and  title  by  derivative  acquisition  are  both  titles 
by  "  purchase  "  as  distinguished  from  title  by  descent  in  which  latter  class  of 
tii lis  no  element  of  consent  on  the  part  of  the  recipient  is  involved  or 
required.  -    Ed, 

'The  term  oci  upancy  (pccupare)  is  used  here  in  the  primary  sense  of  "rasping 
eizing  upon.  In  a  broader  sense  all  titles  by  original  acquisition  maybe 
called  titles  by  "  '"■upancy."  In  tin-  narrow  sense  the  term  is  applied  to  the 
acquisition  "i  property  which  has  no  owner.  The  only  case  for  the  application 
of  the  principle  in  modern  law  is  tin-  one  illustrated  in  the  text,  as  the  ultimate 
ownership  of  land  is  now  in  the  crown  or  the  State.  It  is  not  intended  to  con- 
sider in  this  Part  (except  it  lie  iiu  Mentally),  the  acquisition  of  title  by  the  State; 
this  may  be  by  discovery,  conquest,  treaty,  confiscation,  escheat,  the  exercise  of 
the  right  of  eminent  domain,  or  by  purchase  from  individuals.  —  Ed. 

[1002] 


II.]  BY   ACCRETION   OR   ACCESSION.  1003 

GODDARD  v.  WINCHELL. 

86  Iowa,  71.  —  1892. 
[Reported  herein  at  p.  log.]' 


RITCHTMYER  v.  MORSS. 

3  Keyes  (N.  Y.),  349.  —  1867. 
[Reported  herein  at  p.  283.] 


WARREN  v.  CHAMBERS. 
25  Arkansas,  120.  —  1S67. 

Compton,  J.  — This  was  a  bill  in  chancery,  exhibited  by  Samuel 
H.  Warren  against  William  E.  Chambers,  as  administrator  of 
Stephen  Bonnell,  deceased,  for  an  abatement  in  the  price  of  certain 
lands  which  Bonnell  sold  to  the  complainant. 

At  the  final  hearing  the  bill  was  dismissed,  and  the  complainant 
appealed. 

The  ground  on  which  an  abatement  of  the  purchase  money  is 
sought  is,  that  Bonnell  has  no  title  to  a  portion  of  the  land  embraced 
in  his  deed  to  the  appellant.  The  land  sold  was  bounded  on  Tucker's 
lake,  according  to  the  original  survey  of  the  meanders  of  the  lake, 
made  by  authority  of  the  United  States.  Shortly  before  the  sale  to 
the  appellant,  the  meanders  of  the.  lake  were  again  surveyed,  when 
it  appeared  that  there  was  a  strip  of  land  lying  between  Bonnell's 
land,  as  originally  run,  and  the  lake,  which  had  become  dry  by 
recession  of  the  water.  This  strip  was  conveyed  with  the  other 
land,  and  is  described  in  Bonnell's  deed  as  "  the  swamp  land 
recently  surveyed."  The  evidence  showed  that  the  water  receded 
gradually  —  continuing  to  do  so  through  a  series  of  years. 

Waiving  other  questions  that  have  been  discussed,  we  will  proceed 
to  determine  whether  Bonnell  had  title  to  the  strip  of  land  above 
indicated;  for,  if  he  had,  then  this  controversy  is  ended,  and  the 
decree  of  the  circuit  court  below  must  be  affirmed.  The  question 
presented    involves  an   examination,    to    some   extent,  of  the   doc- 

1  See  as  to  ice,  pp.  136,  146,  supra;  as  to  fixtures,  see  also  the  cases  on  pp.  218, 
224,  227  and  309,  supra.  See  also  cases  on  sea-weed,  wreck,  stranded  property, 
mislaid  goods,  fish  and  game,  pp.  351-371,  supra,  for  analogous  princi- 
ples. —  Ed. 


1004  TITLE   BY   ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

trines  of  alluvion  and  dereliction.  Alluvion,  according  to  the  Eng- 
lish common  law,  is  an  addition  made  to  land  by  the  washing  of  the 
sea,  a  navigable  river,  or  other  stream,  where  the  increase  is  so 
gradual  in  its  progress  that  it  cannot  be  perceived  how  much  is 
added  in  any  moment  of  time.  Land  thus  formed  belongs  to  the 
proprietor  of  the  adjacent  land  to  which  it  is  attached.  Derelic- 
tion, according  to  the  same  authority,  is  a  recession  of  the  waters 
of  the  sea,  a  navigable  river,  or  other  stream,  by  which  land  that 
was  before  covered  with  water  is  left  dry.  In  such  case,  if  the 
alteration  takes  place  suddenly  and  sensibly,  the  ownership  remains 
according  to  former  bounds;  but  if  it  is  made  gradually  and  imper- 
ceptibly, the  derelict  or  dry  land  belongs  to  the  riparian  owner  from 
whose  shore  or  bank  the  water  has  so  receded.  Woolrych  on  Water 
Courses,  marg.  29,  34,  35,  46,  47,  and  authorities  there  cited.  And 
the  reason,  as  given  by  Blackstone,  why  alluvial  and  derelict  land, 
gained  by  imperceptible  degrees,  belongs  to  the  owner  of  the 
adjoining  land,  is  that  de  minimis  Hon  curat  lex,  and  because  such 
owners,  being  often  losers  by  the  breaking  in  of  the  water,  or  at 
charges  to  keep  it  out,  this  possible  gain  is  a  reciprocal  considera- 
tion for  such  possible  charge  or  loss.     Bl.  Com.,  vol.  2,  262. 

In  this  country  these  rules  of  the  common  law  have  been  applied 
to  lake  as  well  as  other  waters.  Thus,  in  Murry  v.  Sermon,  1 
Hawks.  56,  decided  by  the  Supreme  Court  of  North  Carolina,  the 
defendant  in  ejectment  claimed  title  to  the  land  in  dispute,  which 
was  bounded  by  Mattamuskeet  lake,  under  a  patent  dated  in  1761; 
and  the  plaintiff  claimed  under  a  grant  of  recent  date,  covering 
lands  between  the  defendant's  lines  and  the  lake.  Both  parties 
introduced  evidence  as  to  what  had  been  actually  run  for  the  lines 
of  the  defendant's  land;  and  the  court  below  instructed  the  jury  to 
find  for  the  defendant,  no  matter  whether  the  lake  had  receded  or 
not;  for,  in  either  case,  it  remained  his  boundary.  This  was  held 
to  be  erroneous,  and  a  new  trial  was  awarded,  in  order  that  the  jury 
might  find  the  fact  whether  the  waters  of  the  lake  had  receded  grad- 
ually and  imperceptibly,  or  suddenly  and  sensibly,  from  the  land  in 
controversy,  because,  on  that  question,  the  court  said  the  rights  of 
the  parties  depended.  So,  in  Hanks  v.  Ogden,  2  Wal.  57,  recently 
determined  in  the  Supreme  Court  of  the  United  States,  it  was  held 
that  accretion  by  alluvion  from  Lake  Michigan  belonged  to  the 
proprietor  of  the  land  bounded  by  the  lake.  It  is  true  that,  in  both 
of  these  cases,  the  lakes  are  navigable,  and  in  the  case  before  us  evi- 
dence was  introduced  in  the  court  below  to  prove  that  Tucker's  lake 
is  navigable;  hut  in  such  cases  it  is  immaterial  whether  the  water  is 
navigable  or  not.      In  England,  from  whence  we  derive  the  doctrine 


II.]  ACCRETION   OR   ACCESSION.  IO05 

of  alluvion  and  dereliction,  and  where  it  is  said  to  be  applicable  to 
streams  generally,  Woolrych  on  Waters,  marg.  p.  46,  no  river  is 
navigable,  in  a  common-law  sense,  above  the  point  where  the  tide 
ebbs  and  flows  though  it  may  be  so  in  fact;  and  this  rule  has  been 
adopted  in  most  of  the  American  States.  Angell  on  Water  Courses, 
§  542  et  seq.,  and  cases  there  cited.  Whether  a  river  is  navigable, 
in  a  technical  common-law  sense,  or  in  the  ordinary  acceptation  of 
the  term,  or  whether  it  is  navigable  or  not,  may  become  an  import- 
ant inquiry  in  cases  touching  the  right  of  the  public  to  use  it  as  a 
highway,  and  for  commercial  purposes.  So,  a  like  inquiry  would  be 
pertinent  in  cases  involving  the  ownership  of  the  bed  of  the  stream, 
as  between  the  government  or  those  claiming  under  it  and  the 
riparian  proprietors,  because,  at  common  law,  the  bed  of  a  river 
belongs  to  the  government  so  high  up  only  as  it  is  navigable  in  a 
technical  sense,  that  is,  as  far  as  the  tide  ebbs  and  flows;  and  above 
that  point  it  belongs  to  the  riparian  owners;  each  —  where  their 
lands  lie  on  opposite  sides  of  the  river  —  owning  to  the  middle  or 
thread  of  the  stream.  But  whether  a  river  or  other  water  is  or  is 
not  navigable  can  in  no  way  affect  the  right  of  the  riparian  propri- 
etor to  such  additions  as  may  be  made  by  alluvion  or  dereliction. 
His  right  rests  altogether  on  another  and  different  foundation.  The 
facts  to  be  ascertained  are  the  local  situation  of  the  land  and  the 
mode  by  which  the  increase  has  been  added.  If  the  land  is  con- 
tiguous to  the  water  and  the  addition  is  made  slowly  and  insensibly, 
his  title  to  such  addition  is  complete.  In  Municipality  No.  2  v. 
Orleans  Cotton  Press,  18  La.  Rep.  122,  it  was  decided  that  the  right 
to  future  alluvial  formation  was  a  vested  right  inherent  in  the  prop- 
erty, and  an  essential  attribute  of  it,  resulting  from  natural  law,  in 
consequence  of  the  local  situation  of  the  land  to  which  it  attaches, 
and  that  it  was  an  accessory  to  the  principal  estate  or  land,  which 
cities  as  wel.1  as  individuals  might  acquire,  jure  alluvionis,  as  owner 
of  the  front  or  riparian  proprietor,  and  that  the  right  was  founded 
in  justice,  arising  from  the  risks  to  which  the  land  was  exposed,  and 
from  the  burden  of  keeping  up  levees  or  embankments  in  front  of 
the  river  to  protect  the  estate.  And  in  Banks  v.  Ogden,  supra,  the 
Supreme  Court  of  the  United  States  said:  "The  rule  governing 
additions  made  to  land  bounded  by  a  river,  lake  or  sea  has  been 
much  discussed  and  variously  settled  by  usage  and  by  positive  law. 
Almost  all  jurists  and  legislatures,  however,  both  ancient  and  mod- 
ern, have  agreed  that  the  owner  of  the  land  thus  bounded  is  entitled 
to  these  additions.  By  some  the  rule  has  been  vindicated  on  the 
principle  of  natural  justice,  that  he  who  sustains  the  burden  of 
losses  and  repairs,  imposed  by  the  contiguity  of  waters,    ought   to 


1006  TITLE   BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

receive  whatever  benefits  they  may  bring  by  accretion;  by  others  it 
is  derived  from  the  principle  of  public  policy,  that  it  is  the  interest 
of  the  community  that  all  land  should  have  an  owner,  and  most  con- 
venient that  insensible  additions  to  the  shore  should  follow  the  title 
to  the  shore  itself. 

The  testimony  in  the  record  brings  the  case  before  us  clearly 
within  the  rules  of  law  to  which  we  have  referred.  The  conclusion, 
therefore,  is  that  the  appellant  acquired  title  to  the  derelict  land 
under  the  conveyance  from  Bonnell,  and  that  consequently  the 
decree  must  be  affirmed. 


halsey  v.  Mccormick. 

18  New  York,  147.  —  1858. 

Pratt,  J.  —  It  was  settled  by  this  court,  when  this  cause  was 
before  it  upon  a  former  occasion,  that  the  plaintiff's  south  line  did 
not  originally  extend  to  the  centre  of  the  creek,  but  only  to  the  line 
of  low  water  on  the  north  bank.  Assuming  this  to  be  settled,  the 
plaintiff  does  not  claim  that,  as  the  creek  originally  ran,  the  land  in 
dispute  was  embraced  within  the  boundaries  of  his  lot.  But  if  I 
understand  it,  he  claims  that  the  land  in  dispute  is  alluvion,  and  he 
is  entitled  to  it  as  a  riparian  owner.  But  to  acquire  title  to  land  as 
alluvion  it  is  necessary  that  its  increase  should  be  imperceptible  — 
that  the  amount  added  in  each  moment  of  time  should  not  be  per- 
ceived. When  the  change  is  so  gradual  as  not  to  be  perceived  in 
any  one  moment  of  time,  the  proprietor,  whose  land  on  the  bank  of 
a  river  is  thus  increased,  is  entitled  to  the  addition.  Ang.  on  Water 
Courses,  §  53;  2  Bl.  Com.  262;  3  Kent,  519. 

It  is  enough  that  no  such  fact  is  found  in  this  case  as  that  this 
piece  of  ground  is  alluvion  —  that  it  was  formed  by  imperceptible 
accretion.  The  evidence  shows  that  it  was  not  thus  formed.  Mc- 
Cormick  deepened  the  bed  of  the  stream  on  the  south  side,  and 
placed  stones  along  the  centre  so  as  to  confine  the  water  in  the 
channel  thus  deepened,  and  by  this  means  the  land  in  question  was 
left  bare.  He  may  have  been  guilty,  by  these  acts,  of  a  violation 
of  the  riparian  rights  of  the  plaintiff  or  his  grantors,  but  I  know  of 
no  rule  of  law  which  would  constitute  an  illegal  act  of  the  kind  a 
transfer  of  the  title. 

As  the  <  ase  stands,  it  is  not  necessary  to  pass  upon  the  question 
whether  then:  is  a  distinction  between  the  case  of  alluvion  formed 
by  natural  or  artificial  means.  I  find  no  such  distinction  in  the 
books.     If,  by  some  artificial  structure  or  impediment  in  the  stream, 


III.  i.]  ADVERSE   POSSESSION.  .  IOO7 

the  current  should  be  made  to  impinge  more  strongly  against  one 
bank,  causing  it  imperceptibly  to  wear  away,  and  causing  a  cor- 
responding accretion  on  the  opposite  bank,  I  am  not  prepared  to  say 
that  the  riparian  owner  would  not  be  entitled  to  the  alluvion  thus 
formed,   especially  as  against  the  party  who  caused  it. 

If  the  accretion  was  formed  under  all  the  other  circumstances 
necessary  to  constitute  it  alluvion,  I  can  scarcely  suppose  that  a 
person  could  successfully  resist  the  otherwise  valid  claim  of  the 
riparian  owner,  by  alleging  his  own  wrong,  by  showing  that  the 
accretion  would  not  have  thus  formed  if  he  had  not  himself  wrong- 
fully placed  impediments  in  the  stream.  But  that  question  is  not 
before  us.  It  is  enough  that  this  case  does  not  show  that  the  land 
in  question  was  alluvion. 

The  judgment,  therefore,  must  be  affirmed,  with  costs. 


III.  Title  by  adverse  possession.1 

1.   Preliminary  Considerations. 
a.  Mere  possession  as  a  title. 
SHERIN  v.  BRACKETT. 

36  Minnesota,  152.  —  1886. 

Berry,  J.  —  This  is  an  action  in  the  nature  of  ejectment,  in  which 
the  plaintiffs,  seeking  to  recover  possession  of  a  strip  of  land,  alleged 
that  on  October  1,  1885,  and  long  before,  they  were  and  now  are 
owners  thereof;  and  further  that  they  and  their  ancestors,  from 
whom  they  derive  title,  have  been  in  the  actual,  peaceable,  open, 
notorious,  adverse,  and  continuous  possession  thereof  for  more  than 
twenty-five  years  prior  and  up  to  October  8,  1885;  that  on  that  day* 
while  they  were  in  such  actual  possession,  defendant  unlawfully 
entered  upon  said  strip  of  land  and  wrongfully  ejected  them  there- 
from, and  ever  since  wrongfully  detains  possession  thereof. 

Doubtless  the  intent  of  the  pleader  was  to  set  up  title  in  fee  based 

1  This  is  not.  in  and  of  itself,  a  complete  and  perfect  title.  It  arises  on  a  dis- 
seisin or  ouster  of  the  true  owner,  and  consists  in  an  adverse  holding  subse- 
quent thereto,  and  is  good  as  against  all  the  world,  except  the  true  owner,  or 
one  claiming  under  him;  it  may  become  perfect  by  an  estoppel  or  by  the  opera- 
tion of  a  statute  of  limitations.  See  below  and  compare  title  by  prescription 
It  is  to  be  noted  that  immediately  upon  the  disseisin  the  estate  of  the  disseisee 
is  turned  into  a  right  of  entry  and  later  the  right  of  entry  may  be  tolled  in 
one  way  or  another.  The .  disseisee  then  has  a  mere  right  of  action,  which 
a  statute  of  limitations  may  ultimately  cut  off.  —  Ed. 


T0O8  TITLE   BY   ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

upon  what  is  called  adverse  possession.  But  as  the  greater  includes 
the  less,  the  complaint  sufficiently  pleaded  actual  possession  at  the 
time  of  the  defendant's  alleged  entry,  so  that  if  upon  the  trial  the 
plaintiffs  failed  to  make  out  adverse  possession,  such  as  would  give 
them  title  as  against  the  holder  of  the  paper  title,  still,  if  they  proved 
actual  possession,  they  might  properly  insist  that  they  were  within 
the  allegations  of  their  complaint,  and  had  made  out  a  case  as 
against  a  mere  trespasser.  For  as  against  one  showing  no  title  in 
himself,  possession  is  title.  Wilder  v.  City  of  St.  Paul,  12  Minn. 
116,  (192);  Rau  v.  Minnesota  Valley  R.  Co.,  13  Minn.  407,  (442); 
Sedg.  &  W.  Tr.  Title  Land,  §§717,  718. 

The  evidence  upon  the  trial  below  in  the  case  at  bar  showed  that 
plaintiffs  were  in  possession  of  the  strip  of  land  in  controversy  at 
the  time  of  defendant's  entry  upon  it,  and  defendant  gave  no  evi- 
dence of  any  right  or  title  in  himself.  In  this  state  of  the  evidence 
the  plaintiffs  were  entitled  to  judgment,  and  hence  the  trial  court 
erred  in  dismissing  the  action  at  the  close  of  the  plaintiffs'  testimony. 
As  this  point  is  insisted  upon  by  plaintiffs,  it  cannot  be  disregarded, 
and  so  there  must  be  a  new  trial. 

This  disposes  of  the  present  appeal,  but,  as  we  surmise,  not  of  the 
real  merits  of  the  controversy,  and,  therefore,  with  reference  to  a 
new  trial,  we  deem  it  expedient  to  determine  certain  other  questions 
raised  upon  the  argument. 

And,  first,  though  there  are  a  few  cases  which  hold  that  the  statu- 
tory period  of  adverse  possession,  which  will  bar  an  action  for  the 
recovery  of  land,  may  be  made  up  by  tacking  together  the  periods 
of  the  adverse  possesson  of  several  successive  holders  between  whom 
there  is  no  privity,  (see  Scales  v.  Cockrill,  3  Head,  432;  Stnith  v. 
Chapin,  31  Conn.  530;  Davis  v.  Mc Arthur,  78  N.  C.  357),  the  rule 
laid  down  by  the  great  majority  of  courts  and  by  text-writers,  and 
supported  by  the  weight  of  authority,  and  which  must  be  regarded 
as  the  true  rule,  is  that  privity  between  successive  adverse  holders 
is  indispensable.  And  this  upon  the  principle  that  unless  the  suc- 
cessive adverse  possessions  are  connected  by  privity  the  disseisin  of 
the  r <  ;  1 1  owner  resulting  from  the  adverse  possession  is  interrupted, 
and  during  the  interruption,  though  but  for  a  moment,  the  title  of 
real  owner  draws  to  it  the  seisin  or  possession.  Melvin  v.  Pro- 
prietory, etc.,  5  Mete.  15,  (38  Am.  Dec.  384);  Haynes  v.  Boardman, 
119  Mass.  414;  McEntire  v.  Brown,  28  [nd.  347;  Jackson  v.  Leonard, 
<)  Cow.  653;  Wood,  Lim.  ^  271;  San  Francisco  v.  Fuldc,  37  Cal.  349; 
Crispen  v.  Hannavan,  50  Mo.  536;  Shuffleton  v.  Nelson,  2  Sawy.  540; 
Ang.  Lim.  413,  414;  Sedg.  &  W.  'IV.  Title  Land,  §§  740,  745-747; 
Riggi  v.  Fuller,  54  Ala.   141. 


III.  i.]  ADVERSE    POSSESSION.  IOO9 

Second.  The  privity  spoken  of  exists  between  two  successive  holders 
when  the  latter  takes  under  the  earlier,  as  by  descent,  for  instance, 
a  widow  under  her  husband,  or  a  child  under  its  parent,  or  by  will 
or  grant,  or  by  a  voluntary  transfer  of  possession.  Leonard  v. 
Leonard,  7  Allen,  277;  Hamilton  v.  Wright,  30  Iowa,  480;  Jackson  v. 
Moore,  13  John.  513  (7  Am.  Dec.  398);  McEntire  v.  Brown,  supra; 
Weber  v.  Anderson,  73  111.  439;  Wood,  Lim.  §  271;  Sedg.  &  W.  Tr. 
Title  Land,  §§  747,  748. 

Third.  While  to  operate  as  a  bar,  adverse  possession  must  be  con- 
tinuous, continuity  will  not  be  interrupted  by  the  possession,  during 
any  part  of  its  period,  of  one  who  occupies  the  premises  as  a  tenant 
of  the  alleged  possessor.  In  such  cases  the  tenant's  possession  is 
that  of  his  landlord.  San  Francisco  v.  Fulde,  supra;  Rayner  v.  Lee, 
20  Mich.  384;  Sedg.  &  W.  Tr.  Title  Land,  §  747. 

Fourth.  Possession,  to  be  adverse,  so  as  to  bar  an  owner's  right 
of  action,  must  be  actual,  open,  continuous,  hostile,  exclusive,  and 
accompanied  by  an  intention  to  claim  adversely.  Sedg.  &  W.  Tr. 
Title  Land,  §  731  et  sea. 

This  is  all  which  we  deem  it  necessary  to  say  in  this  case;  for,  as 
there  is  to  be  a  new  trial,  we  forbear  to  comment  upon  the 
evidence. 

Order  reversed,  and  new  trial  awarded. 


b.   Forcible  entries  and  detainers. 
PHELPS  v.  RANDOLPH. 

147  Illinois,  335.  —  1S93. 

Craig,  J.  —  The  time  for  which  the  premises  were  leased  had 
expired  when  Phelps  took  possession  and  removed  Randolph's  cattle, 
horses  and  other  property  from  the  lot  or  tract  of  land,  and  it  is 
claimed  that  he  had  the  right  to  take  possession  of  the  property, 
provided  he  could  do  so  without  a  breach  of  the  peace,  while,  on  the 
other  hand,  it  is  claimed  that  Randolph,  being  in  the  lawful  pos- 
session of  the  property,  was  entitled  to  hold  that  possession  until 
dispossessed  in  an  action  brought  for  that  purpose.  The  court,  on 
the  trial,  instructed  the  jury,  in  behalf  of  the  plaintiff  [Randolph], 
in  substance  as  follows: 

"  The  jury  have  nothing  to  do,  in  this  case,  with  the  question  of 
the  ownership  of  the  property  in  controversy.  If  they  believe,  from 
the  evidence,  that  the  plaintiff  was  in  possession  of  it,  claiming  the 
right  thereto  as  tenant  of  defendant,  they  should  find  that  he  was 

LAW  OF  PROP.  IN  LAND  — 64 


IOIO  TITLE    BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

entitled  to  retain  such  possession  until  deprived  of  the  same  by  pro- 
cess of  law  or  by  his  own  acts. 

'  The  jury  are  instructed  that  forcible  entry  does  not  necessarily 
mean  the  taking  of  real  estate  from  the  possession  of  another  by 
breach  of  the  peace.  The  taking  of  such  property  by  opening  a  gate 
and  removing  cattle  or  other  stock  therefrom,  against  the  will  of  the 
one  occupying  such  property,  is  a  forcible  entry  under  the  law. 

"  The  jury  are  instructed  that  no  one,  not  even  the  owner,  has  the 
right  to  forcibly  take  real  estate  from  the  possession  of  another,  no 
matter  how  justly  he  may  be  entitled  to  it;  and  if  the  jury  believe, 
from  the  evidence,  that  the  defendant  forcibly  took  from  the  plain- 
tiff the  real  estate  in  controversy,  against  the  will  of  the  plaintiff, 
the  jury  should  find  the  issue  herein  for  the  plaintiff." 

The  defendant  requested  the  court  to  give  the  following  instruc- 
tions: 

"  A  forcible  entry,  in  the  law,  means  an  entry  with  such  force  and 
violence  as  would  amount  to  a  breach  of  the  peace.  And  in  this 
case,  if  you  believe,  from  the  evidence,  that  the  defendant,  in  enter- 
ing on  the  premises  in  question,  did  not  use  force  and  violence 
amounting  to  a  breach  of  the  peace,  then  his  entry  was  not  a  forcible 
one,  within  the  meaning  of  the  law. 

;'  You  are  instructed  that  if  you  believe,  from  the  evidence,  that 
the  plaintiff,  Randolph,  on  the  30th  day  of  April,  or  the  3d  of 
May,  1890,  rented  the  premises  in  question  from  the  defendant  for 
the  period  of  one  year  from  that  time,  and  paid  him  the  sum  of  $100 
as  rent  for  said  premises  for  such  year,  then  it  became  the  duty  of 
the  plaintiff  to  surrender  up  the  possession  of  said  premises  to  the 
defendant  at  the  expiration  of  such  year,  and  in  such  case  the  plain- 
tiff would  not  be  entitled  to  any  notice  to  quit  and  surrender  up  such 
possession  to  the  defendant.  And  if  you  further  believe,  from  the 
evidence,  that  the  plaintiff  did  not  surrender  up  the  possession  of 
said  premises  at  the  end  of  such  year,  then  the  defendant  had  the 
right  to  peaceably  enter  into  the  possession  of  said  premises,  even 
though  they  were  still  occupied  by  the  plaintiff;  and  in  such  case, 
if  you  believe,  from  the  evidence,  that  the  defendant  peaceably 
entered  into  possession  of  said  premises  and  peaceably  removed  the 
cattle  of  plaintiff  therefrom,  this  the  law  gave  him  a  right  to  do, 
and  you  should,  in  such  case,  find  the  defendant  not  guilty." 

But  the  court  rcfus< id  these  and  other  like  instructions  prepared 
by  the  defendant,  and  the  decision  of  the  court  on  the  instructions 
is  tin-  principal,  and,  indeed,  the  only,  question  of  any  importance 
presented  by  t he  record. 

( >  1  j r  present  statute  provides,  "  that  no  person  shall  make  an  entry 


III.  i.]  ADVERSE    POSSESSION.  IOII 

into  lands  or  tenements  except  in  cases  where  entry  is  allowed  by 
law,  and  in  such  cases  he  shall  not  enter  with  force,  but  in  a  peacea- 
ble manner."  Rev.  Stat.  chap.  57,  §  1.  The  first  section  of  the  act 
of  1845,  entitled  "  Forcible  Entry  and  Detainer,"  declared:  "  If 
any  person  shall  make  an  entry  into  any  lands,  tenements  or  other 
possessions,  except  in  case  where  entry  is  given  by  law,  or  shall  make 
any  such  entry  by  force,  .  .  .  such  person  shall  be  adjudged 
guilty  of  a  forcible  entry  and  detainer,"  etc.  It  will  be  observed 
that  the  two  statutes  are  substantially  alike,  and  hence  any  decision 
of  the  court  rendered  under  the  statute  of  1845  's  applicable  under 
the  present  statute. 

As  early  as  1837,  in  Atkinson  v.  Lester,  1  Scam.  407,  it  was  held: 
'  To  constitute  a  forcible  entry  and  detainer,  under  the  statute,  it  is 
not  necessary  that  actual  force  and  physical  violence  should  be 
used."  The  same  doctrine  was  announced  in  Croff 'v.  Ballinger,  18 
111.  202.  The  court  said:  "To  constitute  forcible  entry  and 
detainer,  under  our  statute,  it  is  not  essential  that  the  entry  be  made 
with  strong  hand  or  be  accompanied  with  acts  of  actual  force  or  vio- 
lence, either  against  person  or  property.  If  one  enters  into  the  pos- 
sessions of  another  against  the  will  of  him  whose  possession  is 
invaded,  however  quietly  he  may  do  so,  tne  entry  is  forcible,  in  legal 
contemplation.  The  word  'force,'  in  our  statute,  means  no  more 
than  the  term  vi  et  armis  does  at  common  law,  —  that  is,  with  either 
actual  or  implied  force."  In  Smith  v.  Hoag,  45  111.  250,  the  same 
question  arose.  It  was  there  insisted  the  entry  was  not  forcible, 
because  Scott,  the  landlord  of  the  appellant,  was  the  owner  and  had 
the  right  to  enter;  that  the  owner  may  use  all  necessary  force  to 
make  an  entry  unless  he  commits  a  breach  of  the  peace.  But  the 
court  held  that  under  our  statute  of  Forcible  Entry  and  Detainer 
actual  violence  amounting  to  a  breach  of  the  peace  is  not  necessary 
in  any  case.  In  Reeder  v.  Purdy,  41  III.  279,  in  passing  upon  the 
statute,  the  court  held  that  any  entry  is  forcible,  within  the  meaning 
of  the  law,  that  is  made  against  the  will  of  the  occupant. 

From  the  authorities  it  is  plain,  under  our  statute,  although  Phelps 
did  not  use  force  amounting  to  a  breach  of  the  peace,  he  is  liable 
under  this  form  of  action.  Randolph,  on  going  to  Chicago  on  busi- 
ness, left  the  pasture  and  his  stock  in  the  care  of  George  Bermal,  his 
servant.  At  seven  o'clock  in  the  morning,  in  the  absence  of  both 
Randolph  and  his  agent,  Phelps,  with  a  force  of  seven  men,  went  to 
the  premises,  and,  without  the  knowledge  or  consent  of  Randolph 
or  his  agent,  entered  the  premises,  drove  out  Randolph's  stock  and 
removed  all  of  his  property,  and  took  possession  of  the  pasture  and 
fastened  the  gates,  and  upon  Randolph's  return  refused  to  permit 


IOI2  TITLE    BY   ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

him  to  enter  upon  the  premises.  In  Wilder  v.  House,  48  111.  279, 
where  the  landlord  entered  upon  leased  premises  in  the  absence  of 
the  tenant  and  removed  his  goods,  it  was  held  that  such  an  entry 
was  unlawful,  and  the  landlord  was  liable  in  an  action  for  trespass. 
So  in  Chapman  v.  Cawrey,  50  111.  513,  it  was  held,  although  a  tenant 
may  be  holding  over,  yet  if,  during  his  temporary  absence  from  the 
premises,  the  entrance  is  closed  against  him,  he  has  the  right  to 
remove  the  obstruction  by  force  and  re-enter,  and  is  not  liable  for  a 
criminal  prosecution  for  so  doing.  In  Doty  v.  Burdick,  83  111.  473,  it 
was  held,  to  maintain  forcible  entry  and  detainer  actual  or  construc- 
tive force  only  is  necessary.  It  was  also  held  that  the  landlord  has 
no  right  to  employ  force  and  violence  to  regain  possession,  although 
the  adverse  possession  may  be  wrongful. 

Much  reliance  is,  however,  placed  in  Fort  Dearborn  Lodge  v.  Klein, 
115  111.  190.  There  may  be  expressions  in  the  opinion  in  that  case 
which  might  be  construed  as  favoring  the  position  of  appellant;  but 
that  was  an  action  of  trespass  where  title  to  the  premises  involved 
was  in  issue,  and  it  was  held  that  the  plea  of  liberum  tenementum  was 
a  good  plea  in  the  action.  In  an  action  of  forcible  entry  and  deta;ner 
the  question  of  title  does  not  arise,  and  cannot  be  considered,  as  has 
been  held  by  this  court  in  numerous  cases.  What  was  said  in  that 
case  in  regard  to  our  statute  of  Forcible  Entry  and  Detainer  was 
obiter  dictum,  as  the  statute  was  not  involved  in  the  case. 

If  Randolph's  term  had  expired,  which  the  evidence  tends  to 
show  it  had,  Phelps  had  a  complete  remedy  in  an  action  of  forcible 
detainer,  or  ejectment,  to  regain  possession  of  the  premises,  but  he 
had  no  right  to  take  the  law  in  his  own  hands  and  take  possession 
by  force.  No  breach  of  the  peace  was  committed,  but  the  entry  was 
a  forcible  one,  —  one  which  the  statute  forbids.  Where  a  person  is 
in  possession  of  a  tract  of  land,  cultivating  it  or  using  it  for  pasture, 
but  not  residing  upon  it,  he  is  entitled  to  the  same  protection  as 
against  an  intruder,  as  he  would  be  if  he  resided  upon  the  land.  His 
absence  from  the  land  is  not  a  license  or  invitation  for  any  one  to 
enter,  and  an  entry  in  the  absence  of  the  party  in  possession,  against 
his  will,  may  be  regarded  as  forcible,  and  in  violation  of  the  statute. 

The  instructions  of  the  court  substantially  conformed  to  the  law 
as  indicated,  and  we  regard  them  correct.1 

1  For  the   New  York   Statute  sec  Code  Civ.  Proc,  ^  2233;  N.  Y.  Penal  Code, 

;'.'  \'<-    \'-7-   -  Ed. 


III.  2.]  ADVERSE    POSSESSION.  IOI3 

2.  The  Essentials  of  an  Adverse  Possession. 

a.    The  possession  must  be  actual  and  exclusive. 

Shiras,   J.,  in  WARD  v.  COCHRAN. 
150  United  States,  597.  —  1893. 

No  state  statute  has  been  referred  to  as  regulating  or  defining 
title  by  adverse  possession,  and,  indeed,  it  is  stated  in  the  brief  of 
defendant  in  error  that  there  is  no  such  statute;  but  there  is  a 
statutory  provision  that  an  action  for  the  recovery  of  the  title  or 
possession  of  lands,  tenements,  or  hereditaments  can  only  be 
brought  within  ten  years  after  the  cause  of  such  action  shall  have 
accrued. 

Our  investigation,  therefore,  into  the  sufficiency  of  the  special 
verdict  must  be  controlled  by  the  principles  established,  in  this 
branch  of  the  law,  by  the  decisions  of  the  courts,  particularly  those 
of  the  Supreme  Court  of  the  State  of  Nebraska  and  of  this  court. 

In  French  v.  Pcarcc,  8  Conn.  439,  440,  it  was  said  that  "it  is  the 
fact  of  exclusive  occupancy,  using  and  enjoying  the  land  as  his  own, 
in  hostility  to  the  true  owner,  for  the  full  statutory  period,  which 
enables  the  occupant  to  acquire  an  absolute  right  to  the  land." 

In  Sparrow  v.  Hovey,  44  Mich.  63,  a  refusal  of  the  court  to  charge 
that,  when  the  title  is  claimed  by  an  adverse  possession  it  should 
appear  that  the  possession  had  been  "  actual,  continued,  visible, 
notorious,  distinct,  and  hostile,"  but  merely  charging  the  jury  that 
the  possession  "  must  be  actual,  continued,  and  visible,"  was  held 
erroneous.  In  Pennsylvania,  it  has  been  repeatedly  held  that,  to 
give  a  title  under  the  statute  of  limitations,  the  possession  must  be 
"  actual,  visible,  exclusive,  notorious,  and  uninterrupted."  John- 
ston v.  Irwin,  3  S.  &  R.  291;  Mercer  v.  Watson,  1  Watts,  330,  338; 
Over  field v .  Christy,  7  S.  &  R.  173. 

In  Jackson  v.  Berner,  48  111.  203,  it  was  held  that  an  adverse  pos- 
session sufficient  to  defeat  the  legal  title,  where  there  is  no  paper 
title,  must  be  hostile  in  its  inception,  and  is  not  to  be  made  out  by 
inference,  but  by  clear  and  positive  proof;  and  further,  that  the  pos- 
session must  be  such  as  to  show  clearly  that  the  party  claims  the  land 
as  his  own,  openly  and  exclusively. 

In  Foulk  v.  Bond,  12  Vroom,  41  N.  J.  Law,  527,  545,  it  was  said: 
"  The  principles  on  which  the  doctrine  of  title  by  adverse  possession 
rests  are  well  settled.  The  possession  must  be  actual  and  exclusive, 
adverse  and  hostile,  visible  and  notorious,  continued  and  uninter- 
rupted." 


IOI4  TITLE   BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

It  was  held  in  Cook  v.  Babcock,  n  Cush.  206,  209,  that  "  when  a 
party  claims  by  a  disseisin  ripened  into  a  good  title  by  the  lapse  of 
time  as  against  the  legal  owner,  he  must  show  an  actual,  open, 
exclusive,  and  adverse  possession  of  the  land.  All  these  elements 
are  essential  to  be  proved,  and  failure  to  establish  any  one  of  them 
is  fatal  to  the  validity  of  the  claim." 

In  Armstrong  v.  Morrill,  14  Wall.  120,  145,  this  court,  speaking 
through  Mr.  Justice  Clifford,  said:  "  It  is  well  settled  law  that  the 
possession,  in  order  that  it  may  bar  the  recovery,  must  be  continuous 
and  uninterrupted  as  well  as  open,  notorious,  actual,  exclusive,  and 
adverse.  Such  a  possession,  it  is  conceded,  if  continued  without 
interruption  for  the  whole  period  which  is  prescribed  by  the  statute 
for  the  enforcement  of  the  right  of  entry,  is  evidence  of  a  fee,  and 
bars  the  right  of  recovery.  Independently  of  positive  statute  law, 
such  a  possession  affords  a  presumption  that  all  the  claimants  to  the 
land  acquiesce  in  the  claim  so  evidenced."  Hogan  v.  Kurtz,  94  U.  S. 
773,  is  to  the  same  effect. 

The  authorities  in  Nebraska  are  substantially  to  the  same  effect 
on  questions  of  title  by  adverse  possession. 

A  leading  case  is  Horbach  v.  Miller,  4  Neb.  31,  46,  48,  in  which  it 
was  said  that  "  the  elements  of  a  title  are  possession,  the  right  of 
possession,  and  the  right  of  property;  hence,  if  the  adverse  occupant 
has  maintained  an  exclusive  adverse  possession  for  the  full  extent  of 
the  statutory  limit  the  statute  then  vests  him  with  the  right  of  prop- 
erty, which  carries  with  it  the  right  of  possession,  and  therefore  the 
title  becomes  in  him.  .  .  .  The  submission  of  the  case  to  the 
jury  correctly  was  that  if  they  believed,  from  the  evidence,  that 
the  plaintiff  in  error,  for  ten  years  next  before  the  commencement  of 
the  action,  was  in  the  actual,  continued,  and  notorious  possession, 
of  the  land  in  controversy,  claiming  the  same  as  his  own  against  all 
persons,  they  must  find  for  the  plaintiff  in  error."  In  Gatling  v. 
Lane,  17  Neb.  77,  82,  the  language  used  was:  "  A  person  who 
enters  upon  the  land  of  another  with  the  intention  of  occupying  the 
same  as  his  own,  and  carries  that  intention  into  effect  by  open, 
notorious,  exclusive  adverse  possession  for  ten  years,  thereby  dis- 
seises  the  owner."  In  Parker  v.  Starr,  21  Neb.  680,  683,  a  recovery 
was  sustained  where  the  testimony  clearly  showed  that  "  the  defend- 
ant and  those  under  whom  he  claims  have  been  in  the  open,  notori- 
ous, and  exclusive  possession  for  ten  years  next  before  the  suit  was 
brought."  In  Ballard  v.  Hansen,  3.5  Neb.  861,  864,  the  following 
instructions,  whh  h  had  been  given  in  the  trial  court,  were  approved 
by  the  Supreme  Court:  '  The  jury  are  instructed  that  adverse  pos- 
session, as  relied    upon   by  the   plaintiffs  in  this  action,  is  the  open, 


III.  2.]  ADVERSE   POSSESSION.  IOI5 

actual,  exclusive,  notorious,  and  hostile  occupancy  of  the  land,  and 
claim  of  right,  with  the  intention  to  hold  it  as  against  the  true  owner 
and  all  other  parties;  such  occupancy,  if  continuous  for  ten  years, 
ripens  into  a  perfect  title,  after  which  it  is  immaterial  whether  the 
possession  be  continued  or  not."  "  If  you  find  and  believe,  from  a 
preponderance  of  the  testimony  in  this  case,  that  the  plaintiff  was 
in  the  actual,  open,  notorious,  exclusive,  continuous  possession  of 
any  of  the  lots  in  controversy  for  ten  years,  claiming  to  own  and 
hold  them  as  against  all  others,  as  to  such  lots  he  is  entitled  to 
recover." 

Tested  by  these  definitions,  it  is  obvious  that  if  the  title  relied  on 
in  this  case,  by  the  defendant  below,  was  fully  described  and  charac- 
terized by  the  special  verdict,  it  was  defective  in  two  very  essential 
particulars;  in  that  it  was  not  found  to  have  been  actual  and  exclu- 
sive. A  possession  not  actual,  but  constructive;  not  exclusive,  but 
in  participation  with  the  owner  or  others,  falls  very  far  short  of 
that  kind  of  adverse  possession  which  deprives  the  true  owner  of  his 
title. 

Where  a  special  verdict  is  rendered  all  the  facts  essential  to  entitle 
a  party  to  a  judgment  must  be  found,  and  a  judgment  rendered 
on  a  special  verdict  failing  to  find  all  the  essential  facts  is 
erroneous.     *     *     * 

In  the  present  case,  even  if  the  verdict  were  regarded  as  a  general 
one,  and  therefore  entitled  to  be  supported  by  the  presumption  that 
sufficient  facts  existed  to  sustain  it,  yet  we  should  feel  constrained 
to  reverse  the  judgment,  because  of  the  errors  complained  of  in  the 
eighth,  ninth,  and  tenth  assignments. 

The  plaintiff's  counsel  requested  the  court  to  charge  the  jury  that, 
in  order  that  possession  of  land  may  overcome  the  title  of  the  true 
owner,  "there  must  be  a  concurrence  of  the  following  elements: 
Such  possession  must  be  actual,  hostile,  exclusive,  open,  notorious, 
and  continuous  for  the  whole  period  of  ten  years.  Every  element  in 
this  enumeration  is  absolutely  essential,  and  if  one  of  these  elements 
does  not  exist  there  can  be  no  adverse  title  acquired;"  and  the 
court  did  so  charge;  but  the  court  then  proceeded  to  say  that,  after 
having  disposed  of  the  written  instruction,  "  I  propose  to  go  outside 
of  what  is  there  stated  and  give  one  on  my  own  motion."  Those 
voluntary  instructions  given  by  the  learned  judge,  though  correct  in 
most  respects,  were  imperfect  in  the  very  particulars  in  which  we 
have  found  the  special  verdict  defective.  The  jury  were  not  told 
that,  to  make  out  the  defense,  the  possession,  in  addition  to  certain 
other  features  properly  specified,  must  be  shown  to  have  been  actual 
and  exclusive.     *     *     * 


IOl6  TITLE   BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

b.   It  must  be  open,  visible  and  notorious. 

Scates,   C.   J.,  in  McCLELLAN  v.   KELLOGG. 

17  Illinois,  498. 

The  intent  to  assert  title  in  himself  by  his  son,  may  be  clear 
enough  from  the  proof,  for  this  must,  be  shown.  Blunden  v.  Baugh, 
3  Croke  R.  302.  But  the  doctrine  of  adverse  possession  is  to  be 
taken  strictly,  and  is  not  to  be  made  out  by  inference,  but  by  clear 
and  positive  proof,  Bonnell  et  al.  v.  Sharp,  3  John.  R.  169:  Rochelle 
ads.  Holmes,  2  Bay  R.  491,  and  proof  of  actual  ouster  shown. 
2  Espin.  N.  P.  9,  old  paging.  The  possession  must  be  with  such 
circumstances  as  are  capable  in  their  nature  of  notifying  to  mankind 
that  he  is  upon  the  land,  claiming  it  as  his  own.  in  person  or  by 
tenant  —  it  must  be  visible,  open,  exclusive,  Irving  v.  Brownell,  11 
111.  R.  413;  it  must  be  hostile  in  its  inception,  and  so  continue, 
Turney  v.  Chamberlain,  15  111.  R.  273;  and  notorious;  and  not  secret, 
as  this  cannot  answer  the  purpose  of  notoriety  to  adverse  claimants, 
cannot  extinguish  their  claim  for  not  being  put  in  in  due  time. 
Adams  on  Eject.  App.  485;  Angell  on  Limit.  400,  §  4,  p.  416,  §  13, 
p.  427,  §  19.  For  the  law  proceeds  upon  the  presumption  of  an 
acquiescence,  which  cannot  be  where  the  possession  and  claim  are 
unknown ;  and  the  acts  of  possession  are  such  as  not  to  give  notoriety 
to  it.     Id. 


c.   It  must  be  with  hostile  intent. 
AYERS  v.  REIDEL. 

84   Wisconsin,  276.  —  1893. 

Ejectment.  Plaintiff  and  defendant  owned  adjoining  parcels  of 
land.  Defendant  built  a  fence  through  the  forest  as  he  opened  up 
his  land  lying  near  the  boundary  and  has  occupied  up  to  the  fence 
for  more  than  twenty  years.  A  survey  now  shows  that  he  had 
enclosed  a  portion  of  plaintiff's  land.  Judgment  for  plaintiff. 
Defendant  appeals. 

PlNNEY,  J. — *  *  *  It  is  contended  that  the  court  erred  in 
refusing  to  direct  a  verdict  for  the  defendant  —  first,  on  the  ground 
that  the  undisputed  evidence  showed  that  the  defendant  had  held 
<  ontinuous  and  adverse  possession  of  the  premises  under  claim  of 
title  for  more  than  twenty  years  before  the  commencement  of  the 
a.  t  ion  ;  ami,  second,  that  it  conclusively  appeared  that  the  boundary 


III.  2.]  ADVERSE   POSSESSION.  IOI7 

line  in  question  had  been  settled  by  acquiescence  more  than  fifteen 
years  before  the  action  was  brought.  What  constitutes  adverse 
possession  is  for  the  court  to  determine,  but  the  facts  which  establish 
it  are  for  the  jury,  and  the  question  of  the  character  of  the  possession 
is  generally  submitted  to  them.  Gross  v.  Welwood,  90  N.  Y.  638.  It 
was  for  the  jury  to  say  what  was  the  real  character  of  the  defendant's 
possession  of  the  strip  in  dispute,  and  whether  it  was  taken  and 
maintained  with  an  intention  by  the  defendant  to  oust  the  true 
owner, — whether  it  was  adverse  to  him  in  fact.  To  constitute 
adverse  possession  there  must  be  the  fact  of  possession  and  the 
hostile  intention,  — the  intention  to  usurp  posession;  and,  if  there 
be  possession  of  land  by  one  not  the  true  owner,  the  presumption 
of  law  is  that  such  possession  is  in  accord  or  amity  with,  and 
in  subservience  to,  the  true  title  and  legal  possession  of  the  owner. 
Dhein  v.  Beuscher,  83  Wis.  316;  Schwallback  v.  C,  M.  6°  St.  P.  R. 
Co.,  69  Wis.  298;  Hacker  v.  Horlemus,  74  Wis.  21;  Harvey  v. 
Tyler,  2  Wall.  349.  The  whole  inquiry  is  reduced  to  the  fact  of 
entering,  and  the  intention  to  usurp  possession.  Probst  v. 
Trustees,  129  U.  S.  191,  192.  Permissive  possession  is  never 
a  basis  for  the  statute  of  limitations,  and  the  rule  is  that  evi- 
dence of  adverse  possession  must  be  strictly  construed,  and 
every  presumption  is  in  favor  of  the  true  owner,  and  that  the 
defendant  entered  under  his  conveyance,  and  that  his  possession  is 
only  co-extensive  with  his  title,  and  restricted  to  the  premises 
granted  by  it.  Sydnorv.  Palmer,  29  Wis.  252;  Graeven  v.  Dieves, 
68  Wis.  317;  Fair  field 'v.  Barrette,  73  Wis.  468.  The  instructions  of 
the  Circuit  Court  on  the  question  of  adverse  possession  were  as 
favorable  to  the  defendant  as  the  law  would  justify,  and  the  jury 
were  properly  instructed  that,  "  whether  the  defendant's  possession 
was  adverse  depended  upon  the  quo  animo  with  which  he  entered 
upon  the  land;  whether  it  was  to  hold  it  adversely,  or  whether  it 
was  merely  tentative  or  provisional,  depending  upon  where  the  true 
line  should  be  afterward  ascertained  to  be."  Whether  the  entry 
of  defendant,  and  his  continued  possession,  were  an  ouster  of  the 
plaintiff  and  his  grantor,  or  were  merely  in  subordination  to  the 
plaintiff,  or  permissive,  was  a  question  of  fact  for  the  jury.  Hacker 
v.  Horlemus,  74  Wis.  25.      *     *     * 

The  jury,  in  view  of  all  the  facts  and  circumstances,  might  well 
say  that  the  old  fence  was  not  intended  as  a  permanent  boundary, 
but  was  built  and  maintained  as  a  matter  of  convenience  until  the 
true  line  should  be  ascertained,  and  that  the  defendant's  posses- 
sion of  the  strip  in  question  had  not  been  adverse  for  twenty  years 
before  the  suit  was  commenced.     While  possession,  occupation,  and 


I0l8  TITLE   BY   ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

improvements  for  several  years,  with  the  knowledge  of  the  true 
owner,  may  ht  prima  facie  evidence  of  adverse  possession,  yet  they 
are  not  conclusive,  and  may  be  explained  and  rebutted  by  proof  of 
facts  showing  that  the  possession  was  not  in  fact  adverse,  Worcester 
v.  Lord,  56  Me.  265;  Dow  v.  Mc Kinney,  64  Me  138;  Lamb  v.  Coe, 
15  Wend.  642;  that  it  was  permissive  or  provisional,  and  without  the 
intention  in  fact  of  claiming  or  acquiring  title. 


BARNES  v.  LIGHT. 
116  New  York.  34.  —  1889. 


Ejectment.     Plaintiff  relies  on  a  title  acquired  by  adverse  pos- 
session.     Judgment  for  defendant.      Plaintiff  appeals. 

Vann,  J. — *  *  *  Whether  the  portion  north  of  the  woods  was 
protected  by  a  substantial  enclosure,  and  whether  it  has  been  usually 
cultivated  or  improved  within  the  meaning  of  the  statute,  were  ques- 
tions of  fact  which  the  jury  should  have  been  permitted  to  pass  upon. 
The  defendant,  however,  contends  that  it  does  not  appear  that  the 
plaintiff  or  his  grantors  ever  claimed  this  strip  of  land,  or  any  part 
of  it.  There  is  no  evidence  that  any  claim  of  title  was  made  by 
word  of  mouth,  but  it  appears  that  each  grantee  in  taking  possession 
of  the  farm,  under  his  deed,  entered  upon,  actually  occupied  and 
improved  the  land  in  controversy,  or  a  part  of  it,  although  it  was  not 
included  in  his  conveyance.  This,  if  done  in  good  faith,  was  enough 
to  satisfy  the  statute.  A  claim  of  title  may  be  made  by  acts  alone, 
quite  as  effectively  as  by  the  most  emphatic  assertions.  As  was 
said  by  the  chancellor,  when  speaking  for  the  Court  of  Errors  in  La 
Fromboisv.  Smith,  8  Cow.  589,  603:  'The  actual  possession  and 
improvement  of  the  premises,  as  owners  are  accustomed  to  possess 
and  improve  their  estates,  without  any  payment  of  rent,  or  recog- 
nition  of  title  in  another,  or  disavowal  of  title  in  himself,  will,  in  the 
rice  of  all  other  evidence,  be  sufficient  to  raise  a  presumption  of 
his  entry  and  holding  as  absolute  owner,  and  unless  rebutted  by 
■  evidence,  will  establish  the  fact  of  a  claim  of  title.  Pos 
session,  accompanied  by  the  usual  acts  of  ownership,  is  presumed 
I  1  be  adverse  until  shown  to  be  subservient  to  the  title  of  another. 

We  think  that  the  refusal  of  the  court  to  submit  to  the  jury  the 
question  "  whether  the  plaintiff  had  not  had  such  adverse  possession 
of  the  premises  <  laimpd  in  the  complaint,  lying  north  of  the  woods, 
to  give  him  title  thereto,"  as  requested  by  the  counsel  for  plain- 
tiff, was  error,  and  calls  for  a  reversal  of  the  judgment. 


III.  2.]  ADVERSE    POSSESSION.  IOI9 

DOHERTY  v.  MATSELL. 

119  New  York,  646.  —  1890. 

Action  to  recover  the  possession  of  real  estate.  The  city  had 
leased  the  lands  for  twenty-five  years  on  account  of  non-payment 
of  taxes.  The  tax  sale  has  been  held  void.  Plaintiff  seeks  now  to 
recover  the  land.     Judgment  for  plaintiff.      Defendant  appeals. 

Per  curiam:  It  is  undoubtedly  true  that  for  irregularities  in 
the  imposition  of  the  taxes  and  in  the  proceedings  leading  to  the 
tax  sale  the  lease  was  void.  But  Matsell  entered  under  the  lease, 
and  his  right  to  hold  under  it  does  not  appear  ever  to  have  been 
disputed.  While  under  such  a  lease  he  was  not  estopped  from  dis- 
puting the  title  of  the  real  owners,  and  while  during  the  term  he 
could  have  originated  an  adverse  possession,  yet  he  did  not  do  so; 
and  the  lease,  although  void,  was  competent  and  persuasive  evidence 
that  he  entered  into  and  held  possession  of  the  land  under  the  lease, 
and  that  he  claimed  no  other  title  thereto.  In  order  to  establish 
title  by  adverse  possession,  it  was  incumbent  upon  the  defendants 
to  show  that  they  and  their  grantors  held  the  land  adversely  and  in 
hostility  to  the  true  owner,  claiming  the  entire  title  thereto.  Hoyt 
v.  Dillon,  19  Barb.  644;  St.  Vincent  Orphan  Asylum  v.  City  of  Troy, 
76  N.  Y.  108;  Gross  v.  Wellwood,  90  Id.  638;  Sands  v.  Hughes,  53 
Id.  287. 

Possession  of  land  is  always  presumed  to  be  in  subordination  to 
the  true  title,  and  one  who  claims  that  it  is  in  hostility  to  such  title 
must  give  evidence  showing  that  fact  or  from  which  the  fact  may 
properly  be  inferred. 

Here  the  evidence  and  circumstances  were  ample  to  justify  a 
finding  that  Matsell,  Sr.,  never,  during  the  time  he  possessed  the 
land,  claimed  to  own  anything  more  than  the  estate  which  the  lease 
purported  to  give  him,  and  that  the  land  was  never  possessed 
adversely  and  in  hostility  to  the  true  owners  prior  to  the  1st  day  of 
November,  1864.  The  quitclaim  deed  to  Mickle  was  an  appropriate 
instrument  for  the  conveyance  of  Matsell's  interest  in  the  term,  and 
the  assignment  at  the  same  time  of  the  lease,  subject  to  the  rents 
and  covenants  therein  contained,  authorizes,  if  it  does  not  absolutely 
require,  the  inference  that  all  that  Matsell  intended  to  convey  was 
his  term  under  the  lease.  The  fact  that  he  resumed  possession  of 
the  premises  in  1858,  without,  so  far  as  it  appears,  any  reconveyance 
to  him,  certainly  is  not  conclusive  evidence  that  he  intended  then 
to  assert  an  absolute  title  to  the  land;  but  the  inference  is  permis- 
sible and  most  probable  that  there  was  either  an  undisclosed  recon- 


1020  TITLE   BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

veyance  to  him  by  Mickle  or  some  arrangement  between  Mickle  and 
him  by  which  he  was  to  resume  his  former  title.  It  must  be  pre- 
sumed, in  the  absence  of  other  proof,  that  he  occupied  the  premises 
then  as  he  did  before  the  conveyance  to  Mickle,  and  as  Mickle  did. 
He  knew  the  existence  of  the  lease  and  that  he  had  no  right  to 
occupy  the  premises  except  by  virtue  thereof,  and  there  can  be  no 
presumption  that  he  intended  without  any  title  or  right  to  acquire 
by  simple  possession  the  title  to  this  land,  and  thus  without  a  shadow 
of  right  deprive  the  true  owners  thereof. 

If  the  adverse  possession  of  these  premises  commenced  at  any 
time  before  the  expiration  of  the  lease  from  the  city,  the  evidence 
authorized  a  finding  that  it  commenced  not  earlier  than  the  ist  day 
of  November,  1S64,  when  Matsell  conveyed  to  his  son.  The  defend- 
ants admit  that  at  the  time  of  the  conveyance  of  the  land  to  Charles 
Jones  they  claimed  the  adverse  possession  under  that  title,  and, 
therefore,  it  was  proper  that  this  action  should  be  commenced  in  the 
name  of  the  grantors  for  the  benefit  of  their  grantee,  under  section 
105 1  of  the  Code. 

The  case  of  Sands  v.  Hughes,  supra,  is  not  an  authority  for  the 
defendants.  The  case  holds  that  a  lessee  under  such  a  lease  is  not 
estopped  from  disputing  the  title  of  the  supposed  owner  for  whose 
default,  in  the  payment  of  the  taxes,  the  land  was  sold  by  the  city, 
and  that,  during  the  term  of  such  a  lease,  even  if  valid,  an  adverse 
possession  may  be  originated  which  will  ripen  into  a  title  within 
twenty  years  after  the  end  of  the  term;  and  that  if  the  lease  is 
invalid  an  adverse  possession  may  originate  and  commence  to  run 
at  any  time  which  will  ripen  into  a  title  within  twenty  years  from 
the  time  it  originated.  There  the  adverse  possession  under  claim  of 
title  was  found.  But  the  difficulty  with  the  case  of  the  defendants 
here  is  that  there  is  no  evidence  requiring  or  finding  that  Mickle 
or  George  W.  Matsell  ever  originated  an  adverse  possession  or 
claimed  an  adverse  title  earlier  than  the  ist  of  November,  1864,  and 
the  defendants,  therefore,  faded  at  the  trial,  as  they  must  fail  here, 
on  the  ground  that  they  did  not  establish  the  adverse  possession 
upon  which  they  seek  to  base  their  title.  But  for  the  lease  the  evi- 
dence was  ample  to  show  the  adverse  possession.  But  the  existence 
of  that,  whether  valid  or  invalid,  and  the  entry  thereunder  character- 
izes  tli<;  possession,  and  must  properly  dominate  this  case. 

We  are,  therefore,  of  opinion  that  the  judgment  should  be 
affirmed,  with  costs. 


III.  3-J  ADVERSE    POSSESSION.  1021 

3.   What  Lands  Will  be  Deemed  to  be  Held  Adversely. 

a.    When  no  color  of  title  in  disseisor.'' 

PROPRIETORS  OF    THE   KENNEBECK  PURCHASE  v. 
SPRINGER. 

4  Massachusetts,  416.  —  1S0S. 

Parsons,  C.  J.  —  The  demandants  sued  the  tenant  in  a  writ  .of 
entry,  counting  on  their  own  seisin  within  thirty  years,  and  demand- 
ing the  northerly  half  of  lot  number  thirty-two  in  the  second  range 
of  lots,  of  which  they  had  been  disseised  by  the  tenant.  On  the 
trial,  upon  the  general  issue,  the  jury  found  a  verdict  for  the  demand- 
ants; and  the  tenant  moves  for  a  new  trial,  because,  as  he  supposes, 
the  verdict  was  against  evidence,  which  is  reported  by  the  judge. 

The  tenant's  title  was  under  a  release  from  James  Springer,  who 
as  the  tenant  alleges,  entered  more  than  thirty  years  before,  and 
disseised  the  demandants;  for  no  evidence  was  given  that  James 
entered  claiming  any  title  or  right  to  the  land. 

The  statute  of  1786,  c.  13,  limits  the  time  of  suing  any  real  action 
by  a  corporation,  declaring  on  its  own  seisin,  to  thirty  years  next  after 
such  seisin.  And  the  tenant  insists  that,  by  virtue  of  this  statute, 
the  demandants  are  barred  by  the  disseisin  done  to  them  by  his 
releasor  in  1775,  which  is  more  than  thirty  years  before  the  test  of 
their  writ. 

The  law  upon  this  subject  seems  to  be  very  well  settled.  When  a 
man  is  once  seised  of  land,  his  seisin  is  presumed  to  continue,  until 
a  disseisin  is  proved.  When  a  man  enters  on  land,  claiming  a  right 
or  title  to  the  same,  and  acquires  a  seisin  by  his  entry,  his  seisin 
shall  extend  to  the  whole  parcel,  to  which  he  has  a  right;  for,  in  this 
case,  an  entry  on  part  is  an  entry  on  the  whole.  When  a  man,  not 
claiming  any  right  or  title  to  the  land,  shall  enter  on  it,  he  acquires 
no  seisin  but  by  the  ouster  of  him  who  has  seised  and  he  is  himself 
a  disseisor.  To  constitute  an  ouster  of  him  who  was  seised,  the 
disseisor  must  have  the  actual  exclusive  occupation  of  the  land, 
claiming  to  hold  it  against  him  who  was  seised,  or  he  must  actually 
turn  him  out  of  possession.  When  a  disseisor  claims  to  be  seised  by 
his  entry  and  occupation,  his  seisin  cannot  extend  further  than  his 
actual  exclusive  occupation;  for  no  further  can  the  party  seised  be 

1  But  in  some  States  entry,  with  claim  of  title  up  to  certain  boundaries,  will  lay 
the  foundation  for  an  adverse  title  to  the  whole  tract,  though  only  part  be  actu- 
ally occupied  and  there  be  no  color  of  title.     Fitch  v.  Mann,  8  Pa.  St.  503.  —  Ed. 


1022  TITLE   BY    ORIGINAL   ACQUISITION.      [PT.  VI.  C1I.  I. 

considered  as  ousted;    for  the  acts  of  a  wrongdoer  must   be   con- 
strued strictly,  when  he  claims  a  benefit  from  his  own  wrong. 

Let  us  now  consider  the  evidence  as  applicable  to  these  principles. 
The  demandants  proved  a  title  to  the  tenements  demanded  and  a 
seisin  in  1769.  This  seisin  must  be  presumed  to  be  continued  until 
they  were  disseised,  as  they  continued  to  claim  title  to  the  land. 
James  Springer  entered  on  the  front  lot,  numbered  thirty-two,  in  1775. 
He  continued  in  the  occupation  of  that  lot,  improving  and  fencing  a 
part,  and  living  on  it  until  he  died;  having,  in  the  year  he  entered, 
cause  it  to  be  run  round  by  a  surveyor,  and  trees  marked  on  the 
lines.  This  land  is  not  demanded.  But  the  notherly  half  of  lot 
numbered  thirty-two  on  the  second  range  is  demanded.  And  it 
appears  that  when  he  surveyed  the  front  lot  in  1775,  he  at  the  same 
time  caused  the  demanded  premises  to  be  run  round  by  the  surveyor, 
and  the  lines  marked.  There  is  no  evidence  that  he  ever  fenced  any 
part  of  the  land  demanded  until  1792,  which  is  within  thirty  years, 
or  exercised  any  act  of  ownership  on  it,  except  that  he  sometimes 
cut  the  grass  on  a  small  meadow  which  was  part  of  it.  Having 
fenced  a  part  in  1792,  he  conveyed  the  premises  to  the  tenant,  who 
entered  and  has  occupied  the  same  under  his  deed  ever  since. 

On  considering  the  evidence,  we  are  satisfied  that  the  demandants 
were  not  disseised  until  1792,  by  the  entry  of  the  tenant;  that  the 
running  round  the  land  by  a  surveyor,  and  marking  the  lines  by  the 
direction  of  one  who  claims  no  title  to  the  land,  is  not  such  an 
exclusive  occupation  of  the  land,  as  can  amount  to  an  ouster  or 
disseisin  of  the  demandants.  Neither  can  the  occasional  cutting  of 
the  grass  on  the  meadow  by  Springer,  who  does  not  appear  to  have 
claimed  the  land,  amount  to  a  disseisin. 

To  constitute  a  disseisin  of  the  owner  of  uncultivated  lands  by  the 
entry  and  occupation  of  a  party  not  claiming  title  to  the  land,  the 
occupation  must  be  of  that  nature  and  notoriety,  that  the  owner  may 
be  presumed  to  know  that  there  is  a  possession  of  the  land  adverse 
to  his  title;  otherwise  a  man  maybe  disseised  without  his  knowl- 
edge, and  the  statute  of  limitations  may  run  against  him,  while  he 
has  no  ground  to  believe  that  his  seisin  has  been  interrupted. 

As  the  tenant  set  up  no  title  prior  to  1792,  but  relied  entirely  on 
the  statute  as  a  bar,  and  as  it  appears  to  us,  from  the  facts  reported, 
that  the  demandants  were  seised  within  thirty  years  next  before  the 
teste  of  their  writ,  we  are  of  opinion  that  the  conclusion  made  by 
the  jury  from  the  evidence  in  the  cause  was  legal,  and  that  their 
verdid    must  stand. 


HI.  3.]  ADVERSE    POSSESSION.  IO23 

b.    When  disseisin  is  under  color  of  title. 
STULL  v.  RICH  PATCH  IRON  CO. 
92  Virginia,  253.  —  1895. 
Ejectment  by  the  Rich  Patch  Iron  Co.  against  Stull. 

Buchanan,  J. — Upon  the  first  trial  of  this  cause,  which  is  an 
action  of  ejectment,  there  was  a  verdict  in  favor  of  the  defendant 
in  the  court  below,  the  plaintiff  in  error  here.  That  verdict  was  set 
aside  upon  the  motion  of  the  plaintiff,  the  defendant  in  error.  To 
this  action  of  the  court  the  defendant  excepted.  Upon  the  next 
trial,  the  jury  failed  to  agree,  and  upon  the  third  and  last  trial  the 
plaintiff  company  demurred  to  the  evidence.  In  this  demurrer  the 
court  required  the  defendant  to  join,  and,  upon  consideration,  gave 
judgment  in  favor  of  the  plaintiff  for  the  land  in  controversy,  except 
some  twenty  acres,  which  the  plaintiff  admitted  it  had  no  right  to 
recover. 

From  the  action  of  the  court  in  setting  aside  the  verdict  upon  the 
first  trial,  and  in  rendering  judgment  in  favor  of  the  plaintiff  on 
the  demurrer  to  the  evidence  upon  the  last  trial,  this  writ  of  error 
was  awarded. 

The  facts  were  substantially  the  same  upon  both  these  trials,  and 
it  is  conceded  that  if  the  judgment  in  favor  of  the  plaintiff  upon  the 
demurrer  to  the  evidence  was  erroneous,  then  its  action  in  setting 
aside  the  verdict  of  the  jury  upon  the  first  trial  was  also  erroneous. 

It  is  admitted  that  the  plaintiff  connected  itself  with  the  Common- 
wealth by  a  regular  chain  of  title  to  the  land  in  controversy,  and  had 
the  right  to  recover,  unless  the  defendant  made  good  his  defense  of 
adverse  possession  for  more  than  fifteen  years  prior  to  the  institution 
of  this  action. 

The  defendant,  to  make  out  his  defense  under  the  statute  of  limi- 
tations, introduced  in  evidence  a  deed  from  R.  N.  Weir  and  wife, 
dated  May  26,  1834,  to  John  Deeds,  Sr.,  for  the  tract  of  land  in  con- 
troversy, described  by  metes  and  bounds,  and  represented  as  con- 
taining one  hundred  and  seventy  eight  acres,  though  in  fact  it  oniy 
contained  one  hundred  and  nineteen  acres.  The  defendant  con- 
nected himself  with  the  Weir  title  by  a  regular  chain  of  conveyances, 
but  it  does  not  appear  that  Weir  and  wife  had  any  title  to  the  land 
by  their  deed,  which  lies  wholly  within  the  boundaries  of  the  plain- 
tiff's survey.  Deeds,  the  vendee  of  Weir  and  wife,  took  possession 
of  the  land  under  his  deed,  cleared  and  fenced  a  few  acres,  claiming 
title  to  the  whole  boundary  embraced  by  his  deed.  Additional  land 
was  cleared  from  time  to  time,  so  that  at  the  time  of  the  trial  there 


1024  TITLE   BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

were  about  twenty  acres  cleared  and  under  fence.  The  defendant, 
and  those  under  whom  he  claims,  have  continuously  held  and  culti- 
vated the  cleared  land  from  the  time  Deeds  took  possession  in  1834, 
claiming  title  to  the  whole  boundary  embraced  by  the  deed  from 
Weir  and  wife.  They  also  cut  rail-timber  upon  the  wooded  land 
adjoining  the  cleared  land,  with  which  to  build  and  repair  fences 
upon  the  land;  but  a  large  part  of  the  boundary  remained  entirely 
in  a  state  of  nature. 

At  the  time  Deeds  purchased  the  land  in  controvrsy  and  took  pos- 
session under  his  deed,  no  one  was  in  the  actual  possession  of  any 
portion  of  the  plaintiff's  9,000-acre  survey,  claiming  under  that  title. 
Afterwards,  in  the  year  1842,  David  Wilson,  who  was  then  the  owner 
of  the  plaintiff's  survey,  placed  a  tenant  upon  the  land,  and  soon 
afterwards  placed  other  tenants  upon  it.  From  the  year  1842  to  the 
institution  of  this  action,  the  plaintiff,  and  those  under  whom  he 
claims,  have  had  one  or  more  tenants  upon  the  large  survey  outside 
of  the  lands  in  controversy,  but  never  had  any  one  upon,  nor  exer- 
cised any  acts  of  ownership  over,  the  land  in  controversy. 

Upon  this  state  of  facts,  the  Circuit  Court  was  of  opinion  that  the 
defense  of  adversary  possession  had  not  been  made  out,  except  as 
to  that  part  of  the  land  which  was  under  fence,  and  which  the  plain- 
tiff admitted  it  had  no  right  to  recover. 

It  is  settled  in  this  State  that  when  a  person,  having  colorable 
title,  enters  upon  vacant  land,  claiming  title  to  the  whole  tract 
covered  by  his  title  papers,  his  possession  is  co-extensive  with  his 
boundaries,  and  this  is  true  although  the  title  conveyed  by  the  writ- 
ing under  which  he  claims  is  worthless.  Creekmur  v.  Creekmur,  75 
Va.  431,  439;   1  Lomax,  Dig.  797;   2  Minor's  Inst.  481,  4th  ed. 

In  Taylor  v.  Burnsides,  1  Gratt.,  at  pages  191-2,  Judge  Baldwin 
says,  "  that  the  adverse  claimant  entering  and  holding  under  a 
colorable  title,  for  example,  a  patent,  deed,  or  other  document,  upon 
a  vacant  possession,  gains  the  actual  possession  to  the  extent  of  his 
boundaries,"  and  this  doctrine,  "  is  sustained  by  numerous  authori- 
ties, and  contradicted  by  none  that  I  have  seen." 

In  Overton's  Heirs  v.  Davisson,  1  Gratt.  223-4,  the  court  said: 
'  The  court  is  further  of  opinion  that  where  the  land  in  controversy 
is  embraced  by  conflicting  grants  from  the  Commonwealth  to 
different  persons,  and  the  junior  patentee  enters  thereupon  and 
and  holds  actual  possession  of  any  part  thereof,  claiming  title 
to  the  whole  under  his  grant,  that  such  adversary  possession  of  part 
of  the  land  in  controversy  is  an  adversary  possession  of  the  whole, 
to  the  e\t<-nt  of  the  limits  of  the  younger  patent;  and  to  that  extent 
is  an  ouster  of  the  seisin  or  possession  of  the  older  patentee,  if  the 


III.  3.]  ADVERSE    POSSESSION.  1025 

latter  has  had  no  actual  possession  of  any  part  of  the  land  within 
the  limits  of  his  grant." 

Jn  such  a  case,  that  is,  where  the  true  owner  has  only  constructive 
possession,  never  having  entered  upon  his  land,  "  if  the  junior 
claimant,"  says  Judge  Lee,  in  delivering  the  opinion  of  this  court  in 
Koiner  v.  Rankin,  11  Gratt.  427,  "settle  upon  the  land  within  the 
interlock,  claiming  title  to  the  whole  within  his  boundary,  he  thereby 
ousts  the  senior  patentee  of  his  constructive  possession,  and  becomes 
actually  possessed  to  the  extent  of  his  grant,"  and  cites  several 
Kentucky  cases  with  approval,  among  them  the  case  of  Fox  v. 
Hinton,  reported  in  4  Bibb  559,  which  holds  that  where  "  two 
patents  interfere  in  part,  and,  before  possession  is  taken  under  the 
elder  patent,  the  junior  patentee  enters  upon  the  land  within  the 
interference,  with  an  intention  to  take  possession,  he  shall  be  con- 
strued to  be  in  possession  to  the  extent  of  his  claim,"  In  discussing 
the  question,  on  page  560,  the  Kentucky  court  said:  "  There  is  no 
doubt  that,  according  to  the  settled  doctrine  of  the  common  law,  a 
person  might,  by  entering  upon  a  part  of  a  tract  or  parcel  of  land  in 
the  name  of  the  whole,  gain  the  possession  of  the  whole,  where  the 
possession  was  at  the  time  of  making  such  entry  vacant." 

In  Cline's  Heirs  v.  Catron,  22  Gratt.,  at  page  392,  this  court  said 
upon  the  subject,  that  "to  be  actual,  the  visible  occupancy  and 
improvement  of  a  part  of  the  land  in  controversy  is  an  actual  pos- 
session of  the  whole  to  the  limits  of  the  claim  under  which  it  is  held, 
and  ousts  or  interrupts  the  legal  seisin  incident  to  the  patent  of  the 
senior  grantee." 

The  possession  thus  acquired  by  the  junior  claimant  when  he 
enters  upon  the  land  in  controversy,  improving  and  cultivating  a 
part,  and  claiming  title  to  the  whole,  is  an  actual  possession  of  the 
whole  land  within  his  boundary.  And  whilst  such  possession,  as 
was  said  by  Judge  Baldwin,  in  Taylor  v.  Burnsides,  cited  above,  may 
be  more  manifest  as  to  a  part  than  as  to  the  rest,  yet,  in  reference 
to  the  whole,  possession  of  part  is  possession  of  the  entire  tract. 
Thus  the  real  apparent  owner,  dwelling  on  his  farm,  is  as  truly  in  the 
actual  possession  of  his  woods  and  waters  as  of  his  pastures,  fields 
and  gardens.  What  is  the  whole  is  to  be  determined  by  the  limits 
owned  or  claimed.  An  intruder,  without  color  of  title,  is  of  neces- 
sity confined  to  his  mere  enclosure.  There  must  be  limits  to  his 
possession,  and  these  are  all  he  can  have.  Such  enclosures,  how- 
ever, are  not  the  boundaries  of  the  real  or  apparent  owner;  his 
marked  or  described  abuttals  show  the  extent  not  merely  of  his 
claim,  but  of  his  exclusive  sway.  The  possession,  therefore,  of  the 
junior  claimant  in  such  a  case  is  both  actual  and  exclusive;  and  if 


1026  TITLE   BY   ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

such  possession  be  not  abandoned  during  the  statutory  period  by 
the  junior  claimant,  or  he  be  not  actually  ousted  of  such  possession 
by  the  entry  upon  and  actual  possession  of  some  part  of  the  land  in 
controversy  by  the  claimant  under  the  senior  grant,  during  that 
period,  his  title  becomes  perfect. 

In  this  case,  when  the  claimant  under  the  deed  from  Weir  and  wife 
entered,  in  the  year  1834,  upon  the  119-acre  tract  of  land,  enclosing 
and  cultivating  a  part,  and  claiming  title  to  the  whole,  his  possession 
was  co-extensive  with  his  boundaries,  there  being  at  that  time  no 
one  claiming  under  the  plaintiff's  title  in  the  actual  possession  of 
any  part  of  his  survey.  The  claimant  under  the  Weir  title  having 
thus  ousted  or  disseised  the  claimant  under  the  plaintiff's  title,  he 
was  in  the  actual  adverse  possession  of  the  whole  boundary  claimed 
by  him,  and  the  statute  of  limitations  then  commenced  to  run  in  his 
favor,  not  only  as  to  that  part  of  the  land  which  he  had  enclosed, 
but  as  to  all  his  tract. 

Before  the  period  had  elapsed  necessary  to  make  good  the  title  of 
the  junior  claimant  under  the  statute  of  limitations,  those  under 
whom  the  plaintiff  claims  entered  upon,  and  took  actual  possession 
of,  the  plaintiff's  survey,  outside  of  the  land  in  controversy.  This 
entry  and  possession,  it  is  most  earnestly  contended  by  the  counsel 
of  the  plaintiff,  operated  to  oust  or  dispossess  the  claimant  under 
the  Weir  title  of  the  whole  of  the  land  in  controversy,  except  that 
part  which  was  enclosed. 

We  are  referred  to  cases  decided  by  the  Supreme  Court  of  the 
United  States  and  the  highest  courts  of  Pennsylvania  and  of  other 
States,  as  sustaining  this  view.  The  decisions  of  the  Supreme  Court 
of  the  United  States  upon  questions  of  land  titles  follows  the  deci- 
sions of  the  courts  of  the  States  respectively  in  which  the  land  in  con- 
troversy is  located,  and  are,  therefore,  for  the  most  part,  based  upon 
local  statutes  and  decisions.  For,  as  was  said  by  Mr.  Justice  Cat- 
ron, in  White  v.  Burnly,  20  Howard,  at  page  251,  "  We  have 
endeavored  carefully  to  follow  the  doctrine  of  the  Supreme  Court 
of  Texas  in  this  opinion,  because  we  are  bound  to  follow  the  settled 
adjudications  of  the  State  in  cases  affecting  titles  of  land  there." 
Supervisors  v.  United  States,  18  Wall,  at  page  82;  Balkatn  v.  Wood- 
stock Iron  Co.,  154  U.  S.  177,  187. 

If,  therefore,  the  question  now  under  consideration  were  an  open 
question  in  this  State,  we  could  gain  but  little  aid  from  the  decisions 
referred  to  unless  we  knew  that  they  were  based  upon  statutes  similar 
to  \  2740  of  our  Code,  which  provides  that  "in  a  controversy 
.  1 1 1  < • '  1  ing  real  1  state,  possession  of  part  shall  not  be  construed  as  pos- 
session of  the  whole,  where  actual  adverse  possession  can  be  proved." 


III.  3-]  ADVERSE    POSSESSION.  IO27 

But  the  question  involved  in  this  case,  we  think,  was  raised  and 
decided  in  this  State  as  far  back  as  1844,  in  the  case  of  Taylor  v. 
Burnsides,  reported  in  1  Gratt.  165. 

The  judgment  of  the  court  in  that  case,  in  which  all  the  judges 
sitting  concurred,  beginning  at  page  209,  says:  '  The  court  is  of 
opinion  that  the  instruction  given  by  the  said  Circuit  Court  to  the 
jury  on  the  trial  of  the  cause  ought  not  to  have  been  given,  but 
that,  in  lieu  thereof,  the  said  Circuit  Court  ought  to  have  instructed 
to  the  effect  following."  Then  follow  five  instructions  which  the 
court  declares  ought  to  have  been  given.  The  fourth  and  fifth  of 
these  instructions  are  as  follows: 

"  4.  The  tenant  cannot  sustain  his  said  defense  of  continued 
adversary  possession,  if  it  shall  appear  from  the  evidence,  that  the 
demandants,  or  those  under  whom  they  claim,  did,  within  said  period 
of  twenty-five  years,  enter  upon  the  land  in  controversy,  and  take 
actual  possession  thereof  by  such  means  as  are  mentioned  in  the 
second  instruction. 

"  5.  That  such  entry  of  the  demandants,  or  those  under  wnom 
they  claim,  upon,  and  possession  of,  the  land  within  their  older 
grants,  not  embraced  by  the  younger  grant  of  the  tenant,  could  not 
have  the  effect  of  an  entry  upon  and  possession  of  the  land  in  con- 
troversy." 

This  latter  instruction  holds  that  an  entry  upon  and  possession  of 
the  land  within  the  older  grant,  not  embraced  within  the  younger 
grant,  does  not  have  the  effect  of  an  entry  upon  and  possession  of 
the  land  in  controversy  where  the  junior  patentee  had,  prior  to  that 
time,  entered  upon  and  was  then  actually  occupying  part  of  the  land 
in  controversy  by  building,  clearing,  cultivating,  or  enclosing  it, 
claiming  title  to  the  whole. 

This  view  must  necessarily  follow,  since,  under  our  decisions,  the 
entry  of  the  junior  claimant  upon  the  land  in  controversy,  and  his 
occupancy  thereof  by  building,  clearing,  cultivating,  or  enclosing  a 
part,  and  claiming  title  to  the  whole  —  the  claimant  under  the  senior 
patent  not  then  being  in  actual  possession  of  any  part  of  his  tract  — 
gives  the  junior  claimant  actual  and  exclusive  possession  of  his  whole 
boundary  The  possession  of  the  claimant  under  the  junior  title, 
being  an  actual  adversary  possession,  to  the  whole  extent  of  his 
boundary,  the  entry  and  actual  possession  of  the  claimant  under  the 
senior  grant,  of  lands  outside  of  the  lands  in  controversy  would  not 
have  the  effect  of  ousting  or  disturbing  the  claimant  under  the  junior 
title  as  to  any  part  of  his  tract.  The  entry,  to  be  good  for  such 
purpose,  must  be  made  upon  the  land  in  controversy;  for  to  oust  an 
actual  possession  there  must  be  an  entry  upon  that  possession.     This 


1028  TITLE    BY   ORIGINAL   ACQUISITION.     [FT.  VI.  CH.  I. 

was  expressly  held  in  Fox  v.  Hinton,  4  Bibb,  559-60,  referred  to 
above,  and  cited  with  approval  by  Judge  Lee  in  Koiner  v.  Rankin. 

If  the  subsequent  entry  of  the  claimant  under  the  senior  grant  on 
his  tract,  outside  of  the  land  in  controversy,  would  have  the  effect 
of  ousting  the  claimant  under  the  junior  grant  of  any  part  of  his 
boundary,  then  he  might  be  ousted  or  dispossessed  not  only  without 
his  knowledge,  but  without  any  means  of  acquiring  knowledge,  and 
without  even  knowing  that  any  person  other  than  himself  claimed 
title  to  the  land.  Under  the  loose  system  of  granting  lands  in  force 
at  an  early  day  in  this  State,  it  is  well  known  that  the  same  land  was 
frequently  granted  to  two  or  more  persons,  without  any  fault  upon 
their  part.  The  claimant  under  the  junior  grant,  thinking  that  he 
had  good  title  to  the  land,  entered  upon  and  actually  occupied  a  part, 
claiming  title  to  his  whole  tract.  He  afterward  sells  it  for  a  full 
price,  and  his  vendee  takes  a  like  possession  and  makes  a  like  claim 
to  the  whole  tract;  and  thus  the  land  may  be  held,  as  in  this  case, 
for  fifty  years  or  more.  The  claimant  under  the  senior  grant  then 
brings  his  action  to  recover  the  land  embraced  in  the  boundaries  of 
the  junior  grant.  Upon  the  trial  of  the  case,  the  claimant  under  the 
junior  grant  learns  for  the  first  time  that  the  senior  grantee,  or  those 
who  claim  under  him,  had,  before  the  statute  of  limitations  had  run 
in  favor  of  those  claiming  under  the  junior  grant,  entered  upon  a 
part  of  the  land  embraced  in  the  boundaries  of  the  senior  grant,  five 
or  may  be  twenty  miles  away,  for  these  grants  frequently  contained 
from  100,000  to  500,000  acres,  and  had  cleared  and  cultivated  a  few 
acres,  claiming  title  to  the  whole  tract.  To  allow  a  plaintiff  to 
recover  under  such  circumstances  would  work  the  grossest  injustice 
to  the  claimants  under  the  junior  title. 

The  claimant  under  the  senior  patent  knows,  or  ought  to  know- 
his  own  boundaries,  and  that  another  has  settled  within  them,  claim, 
ing  and  exercising  dominion  over  the  land  in  controversy,  and  if 
under  these  circumstances  he  remains  quiet,  allows  the  claimant 
under  the  junior  grant  to  believe  he  is  the  true  owner  of  the  land, 
and  fails  to  assert  his  right  to  the  land  in  controversy  by  action  or 
entry  within  the  statutory  period,  he  ought  not  to  be  allowed  to 
recover.  The  statutes  of  limitations  in  real  actions  are  founded 
upon  a  wise  and  salutary  public  policy.  They  require  nothing  but 
reasonable  vigilance  upon  the  part  of  the  owner,  and  are  necessary 
for  the  repose  of  bona  fide  settlers  in  the  regions  of  our  wild  and 
uik  nit ivated  lands. 

The  questi  >n  involved  in  this  1  use  is  not,  as  counsel  for  the  plain- 
tiff contends,  the  question  left  undecided  in  the  cases  of  Taylor  v . 
£urnsidet   and   Overton    v.  Davisson,    1   Gratt.,    and    in    later   cases, 


III.  3. J  ADVERSE   POSSESSION.  IO29 

The  question  is  this,  viz. :  Does  the  adverse  possession  of  the  claim- 
ant under  a  junior  title  extend  to  the  whole  of  his  tract,  or  only  to  the 
exteat  of  his  enclosures,  where  there  are  conflicting  grants  or  deeds 
to  lands  causing  an  interlock,  the  claimant  under  the  older  title 
being  in  actual  possession  of  a  part  of  his  land  outside  of  the  inter- 
lock, when  the  claimant  under  junior  title  entered  upon  and  took 
actual  possession  of  a  part  of  the  interlock,  claiming  title  to  the 
whole  extent  of  his  boundary?  That  is  still  an  open  question  in  this 
State,  and,  as  it  does  not  arise  in  this  case,  we  do  not  wish  to 
be  understood  as  expressing  any  opinion  upon  it. 

It  follows  from  what  has  been  said  that  the  Circuit  Court  erred 
in  setting  aside  the  verdict  of  the  jury  upon  the  first  trial,  and  that 
all  proceedings  in  the  case  in  the  Circuit  Court  subsequent  to  that 
verdict  must  be  reversed  and  set  aside,  and  judgment  entered  upon 
that  verdict  for  the  defendant. 

Reversed. 


GRIMES  v.  RAGLAND. 
28  Georgia,  123.  —  1859. 
Ejectment.  — Verdict  for  defendant.     Motion  for  new  trial. 

McDonald,  J.  —  *  *  *  The  next  ground  is  the  important 
one  in  the  motion,  and  the  point  is  easily  extracted  from  the  request 
of  the  court  to  charge  the  jury,  and  the  charge  of  the  court  as  given 
to  the  jury,  viz.:  whether  a  residence  upon,  and  the  actual  posses- 
sion and  occupation  of,  one  of  two  tracts  of  land  conveyed  to  the 
defendant  in  the  same  deed,  is  such  a  constructive  possession  of  the 
other  tract,  of  which  there  is  no  actual  occupation,  as  if  continued 
long  enough,  will  bar  an  action  by  the  rightful  owner  under  the 
statute  of  limitations.  The  court  below  charged  the  jury  that  it 
would.  The  defendant  resided  on  the  tract  of  land  adjoining  that 
sued  for.  He  claimed  both  tracts  of  land  under  one  and  the  same 
deed.  He  had  a  hog  pen  on  the  land  in  dispute,  and  had  rails  split 
and  logs  cut  on  it,  but  stated  that  he  was  not  in  possession  of  it, 
except  that  he  had  paid  taxes  for  it. 

By  our  lottery  system,  lands  are  divided  into  tracts  by  number 
and  district,  and  ordinarily,  there  can  be  but  one  grantee  or  one  set 
of  grantees,  as  when  the  grant  is  to  orphans,  so  that  a  careful  and 
guarded  purchaser  can  find  but  little  difficulty  in  ascertaining 
whether  he  has  the  rightful  title.  This  consideration  alone  should 
lead  courts  to  adhere  to  the  strictest  rules  of  construction  in  favor 
of  the  true  owner.     We  have,  in  the  judgment  we  pronounce,   laid 


IO3O  TITLE   BY   ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

some  stress  upon  this  matter,  though  it  was  not  necessary  in  order 
to  sustain  the  case  of  the  plaintiff  in  error.  It  is  laid  down  in 
Adams  on  Ejectment,  592,  that  where  a  large  tract  of  land  is  divided 
into  lots,  the  possession  of  one  lot  adversely  will  not  create  a  con- 
structive adverse  possession  of  the  other  parts  of  the  tract,  although 
claimed  by  the  defendant  under  the  same  paper  title.  The  author 
cites  in  support  of  the  principle  the  case  of  Johnson  ex  dent.  Ten 
Eyck  and  Wife  v.  Richards,  6  Cowen,  623.  "  The  law  deems  every 
man  to  be  in  the  legal  seisin  and  possession  of  land,  to  which  he  has 
a  perfect  right  and  complete  title;  this  seisin  and  possession  is 
co-extensive  with  his  right,  and  continues  until  he  is  ousted  thereof 
by  an  actual  adverse  possession."  United  States  v.  Arredendo  and 
Others,  6  Peters'  Rep.  743.  This  court  has  held  repeatedly  that  the 
owner  of  land  in  this  State,  having  the  true  title,  is  in  constructive 
possession  of  his  wild  lands  wherever  situated,  and  that  a  possession 
to  be  adverse  to  him  so  as  to  create  a  bar  under  the  statute  of  lim- 
itations, must  be  open,  notorious  and  continued.  That  is  unques- 
tionably the  true  and  sensible  rule.  One  reason  which  is  assigned 
why  a  possession  is  held  to  be  adverse  to  the  rightful  owner  of  land, 
is  his  presumed  acquiescence  in  the  right  of  the  possessor.  There 
can  be  no  acquiescence  without  notice,  and  there  can  be  no  not'ce 
if  the  possession  has  not  been  open,  visible,  notorious  and  con- 
tinued. Hence,  the  reason  of  the  rule,  that  to  create  an  adverse 
possession  it  must  be  open  and  continued.  If  it  be  not  continued, 
another  presumption  comes  to  the  aid  of  the  true  owner,  and 
every  legal  presumption  is  in  his  favor,  and  that  is,  that  the 
possessor,  by  relinquishing  the  actual  possession,  acknowledges 
the  superior  title  of  the  true  owner.  By  his  abandonment  of 
the  possession,  the  constructive  possession  of  the  true  owner 
extends  immediately  to  the  premises,  and  it  requires  a  new 
ouster  or  disseisin  to  fix  a  starting  point  for  the  statute.  On 
this  point  Ch.  J.  Shaw  said,  in  the  case  of  Blood  v.  Woods,  1  Met. 
Rep.  Mass.  528,  "  One  point  seems  to  be  well  settled,  which  is,  that 
very  strong  acts  of  exclusive  possession,  such  as  building,  inclosing 
or  cultivating,  and  that  for  a  long  time,  and  openly  and  notoriously, 
are  necessary  in  order  to  create  an  actual  ouster  of  the  true  owner, 
who  has  no  notice  of  such  acts."  In  regard  to  the  premises  now  in 
dispute,  if  the  owner  had  passed  the  land  and  examined  it,  at  any 
time  prior  to  the  clearing  of  the  field  in  1S52  or  1853,  he  would  have 
had  no  notice  whatever  of  an  adverse  claimant,  for  the  hog  pen, 
which,  according  to  the  usage  of  the  country,  is  no  evidence  of 
ownership  of  the  land  on  which  it  is  put,  the  splitting  of  rails  or  the 
Cutting  of  logs,  which  arc  the  ordinary  works  of  trespassers  residing 


III.  4-]  ADVERSE   POSSESSION.  IO3I 

on  contiguous  lands,  would  not  have  advertised  him  in  the  absence 
of  an  actual  occupant. 

But  again,  here  are  two  persons  claiming  title  to  the  land.  One 
has  the  actual,  rightful,  bona  fide  title;  the  other  has  a  spurious  title. 
Neither  of  them  has  the  actual  possession.  In  whom  is  the  con- 
structive possession?  Surely  in  him  who  has  the  rightful  bona  fide 
title. 

For  the  reasons  here  assigned,  we  think  that  the  court  erred  in 
refusing  to  charge  the  jury  as  requested  by  plaintiff's  counsel,  and 
in  giving  the  charge  he  did  to  the  jury,  and  on  that  ground  he  ought 
to  have  granted  a  new  trial. 

Judgment  reversed. 


4.   Power  of  Disseisee  to  Convey  After  the  Disseisin. 
JACKSON,  ex  dem.  LATHROP  v.  DEMONT. 

9  Johnson,  55.  —  1S12. 
Ejectment.  — Verdict  for  defendant.     Motion  for  new  trial. 

Kent,  Ch.  J.,  delivered  the  opinion  of  the  court.  Two  questions 
arise  on  this  case:  1.  Is  the  lessor,  Nichols,  entitled  to  recover  upon 
the  deed  from  R.  Lathrop  to  him?  2.  If  not,  then  can  Lathrop 
himself  recover  in  opposition  to  his  deed  to  Miller,  under  whom  the 
defendant  holds?  Unless  we  can  answer  one  of  these  questions  in 
the  affirmative,  judgment  must  be  rendered  for  the  defendant. 

1.  At  the  time  of  the  execution  of  the  deed,  from  Lathrop  to 
Nichols,  the  defendant  was  in  possession  under  Miller,  who  held  the 
land  under  a  deed  from  another  source.  The  possession  was  then 
adverse  to  the  claim  or  right  of  Rufus  Lathrop,  and  it  is  a  well  set- 
tled principle  of  law,  that  if  a  person  out  of  possession  conveys  to  a 
stranger,  land  held  adversely  by  another,  the  conveyance  is  void,  so 
that  the  stranger  cannot  maintain  an  action  upon  it.  Nothing 
passes  by  such  a  deed;  for  a  right  of  entry,  or  a  right  in  action,  was 
not  assignable  by  the  common  law.  This  doctrine  is  by  no  means  a 
novel  one,  for  it  has  been  so  frequently  and  uniformly  acknowl- 
edged, both  in  England  and  in  our  own  courts,  that  it  has  now 
grown  to  be  familiar,  and  cannot  be  open  for  discussion.  Litt.  sect. 
347.  Co.  Litt.  ibid,  and  369a.;  Plowd.  88  b. ;  2  Sch.  &  Lef.  65, 
105;  2  Caines,  1S3;  Jackson  v.  Todd,  5  Johns.  Rep.  489;  IVilliams 
v.  Jackson. 

Indeed  this  principle  was  conformable  to  the  whole  genius  and 
policy  of  the  common  law,  by  which  a  tenant  could  not  aliene  his  fee 


IO32  TITLE   BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

or  tenure,  without  the  consent  of  his  lord,  nor  the  lord  his  seigniory, 
without  the  consent  or  attornment  of  his  tenant.  Wright  on  Tenures, 
166,  171.  A  feoffment  was  void  without  livery  of  seisin  and  without 
possession  a  man  could  not  make  livery  of  seisin.  Perkins,  s.  220. 
Nor  was  this  principle  peculiar  to  the  English  law.  It  was  a  funda- 
mental doctrine  of  the  law  of  feuds  on  the  continent  of  Europe. 
No  feud  could  be  created  or  transferred  without  investiture,  or  put- 
ting the  tenant  into  possession.  Feudum  sine  investitura  nulla  modo 
constitui potest.  Investitura  proprie  dicitur  possessio.  Feudorum,  lib. 
1,  tit.  25;  lib.  2,  tit.  2.  And  Voet  says  that  delivery  of  possession 
is  still  requisite  in  Holland  and  Germany,  to  the  transfer  of  real 
property.  Com.  ad  Pand.,  lib.  41,  tit.  1,  §.  38.  It  is  no  doubt  the 
general  sense  and  usage  of  mankind  that  the  transfer  of  real  prop- 
erty should  not  be  valid,  unless  the  grantor  has  the  capacity,  as 
well  as  the  intention  to  deliver  possession,  and  actually  does  it. 
Blackstone  says  that  it  prevails  in  the  codes  of  "  all  well-governed 
nations."  for  possession  is  an  essential  part  of  the  title  and  dominion 
over  property.     2  Com.  311,  312. 

That  the  possession  of  Miller  was  in  fact  adverse  to  the  right  of 
R.  Lathrop,  is  most  clearly  made  out,  because  he  was  in  possession 
under  color  and  claim  of  title  by  virtue*  of  a  deed  from  Samuel 
Lathrop.  This  amounted  to  one  of  the  species  of  disseisins  men- 
tioned by  Bracton,  who  says,  lib  4,  fol.  161  b.,  that  "  disseisin  may 
be  not  only  when  the  owner,  or  his  family  or  steward  are  violently 
ejected,  but  also  when  the  owner,  having  gone  abroad  and  left  his 
possession  unoccupied,  he  is  denied  entry  on  his  return;  and  so  it  is 
if  one  uses  another's  land  against  his  will,  claiming  it  to  be  his  own, 
contendendo  tenementum  esse,  suuin  quod  est  alterius." 

In  the  modern  case  of  Doe  v.  Prosser,  Cowp.  217,  Lord   Mansfield 

gives   a   sample   of   what   constitutes   an   adverse   possession.      "  If 

upon  demand  by  the  co-tenant  of  his  moiety,  the  other  denies  to  pay 

and  denies  his  title,  saying  he  claims  the  whole,  and  will  not  pay,  and 

continues    in    possession,    such    possession    is   adverse    and    ouster 

enough."      It    does    not   seem    to  be    material,  as   it  concerns   the 

operation    of  the    deed,    that  the    knowledge  of    the    adverse    pos- 

ion   should  be  brought  home  to  the  parties,    though    it    might 

be    material,     if    either    of    them    was    prosecuted    for    the    penalty 

given  by  the  statute    against  selling  pretended   titles.     In    Slyright 

Page's    Case,    1     I. con,    t66,    it   was    considered    that    the    deed 

might   be   void,  and  yel   the  party  not  liable  to  the  penalty  of  the 

ite.       '  The  firsl  question   in  that  case  was,  if  the  lease,  being 

made    by    one    oul    of    possession,    and    not   sealed   and    delivered 

the   land,   and  so  not   good  in    law  as  to   pass   any  interest. 


III.  4.]  ADVERSE    POSSESSION.  IO33 

be  within  the  statute  faoresaid  "  But  in  this  case  the  legal 
inference  is  that  R.  Lathrop  knew  of  the  adverse  possession  of 
Miller  when  he  sold  to  Nichols,  for  he  must  be  presumed  to  be 
acquainted  with  his  own  right;  and  the  presumption  is  that  Nichols 
purchased  under  the  same  knowledge,  for  Miller  had  not  only  a  ten- 
ant in  actual  possession,  but  his  deed  from  S.  Lathrop  had  been 
recorded  several  days  before,  and  the  lands  lay  in  a  county  in  which 
deeds,  as  well  as  mortgages,  are  required  to  be  recorded.  It  is 
extremely  improbable  that  Nichols  purchased,  without  having  previ- 
ously inspected  the  state  of  the  title  upon  record,  and  inquired  into 
the  claims  of  the  actual  occupant.  He  had,  at  least,  constructive 
notice,  or  notice  in  law. 

The  title  set  up  by  the  lessor,  Nichols,  most  undoubtedly  fails, 
and  the  next  point  is  whether  the  other  lessor,  R.  Lathrop,  is 
entitled  to  recover. 

2.  It  might  possibly  be  a  question  whether  the  acceptance  of  the 
deed  from  R.  Lathrop  to  Miller  was  not  an  act  of  maintenance  in 
Miller,  as  it  was  taken  after  the  suit  was  brought,  at  least  it  was 
so  understood  upon  the  argument,  and  probably  with  an  intent  to 
defend  himself  with  it  in  that  suit.  But  as  R.  Lathrop  was  one  of 
the  lessors  of  the  plaintiff,  and  had  the  title  of  the  land  in  himself, 
it  was  not  very  inconsistent  with  good  policy  that  he  should  be 
enabled  to  sell,  and  the  tenant  in  possession  to  purchase,  for  it  was 
putting  an  end  to  the  controversy.  We  mean  not,  however,  to  dis- 
cuss and  decide  this  point  in  the  present  case;  for,  even  admitting 
the  sale  to  have  been  an  act  of  maintenance,  yet  the  deed  was 
effectual  as  between  the  parties  to  it.  Rufus  Lathrop  cannot  recover 
in  opposition  to  his  deed  to  Miller.  It  operates  to  estop  him,  and 
it  seems  to  be  a  principle  which  runs  through  the  books  that  a  feoff- 
ment upon  maintenance  or  champerty  is  good  as  between  the  feoffer 
and  feoffee,  and  is  only  void  against  him  who  hath  right.  Bro.  tit. 
Feoffments,  pi.  19;  Fitzherbert,  J.,  in  27  Hen.  VIII.,  fol.  23  b.,  24 
a;  Co.  Litt.  369a.;  Cro.  Eliz.  445;  Beaumond,  J.,  Hawk.  b.  I.  c. 
86,  §  3.  The  consequence  is,  that  when  the  question  is  upon  the 
demise  of  Rufus  Lathrop,  his  deed  to  Miller  is  an  effectual  bar  to 
his  recovery.  The  only  objection  that  could  have  been  made  to  the 
introduction  of  this  deed  at  the  trial,  assuming  it  to  have  been  given 
after  suit  brought  and  issue  joined,  was  that  it  ought  to  have  been 
pleaded  puis  darrein  continuance,  so  that  it  might  have  been  returned 
as  parcel  of  the  nisi  prius  record.  This  is,  no  doubt,  the  general 
and  proper  course.  Yelv.  180;  2  Rich.  Com.  Pleas,  13.  But  it  is  a 
sufficient  answer  to  this  objection  that  the  deed  was  admitted  in  evi- 
dence, and  went  to  the  jury  without  opposition.     It  is,  then,  to  be 


1034  TITLE   BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

considered  as  admitted  by  consent,  and  is  to  have  the  same  effect  as 
if  it  had  been  duly  pleaded. 

Neither  of  the  lessors  of  the  plaintiff  has,  then,  shown  a  right  to 
recover.  We  cannot  give  effect  to  the  deed  to  Nichols,  because  of 
the  adverse  possession  existing  at  the  time  of  the  sale,  and  we  can. 
not  allow  Lathrop  to  recover,  in  defiance  of  his  own  deed  to  Miller. 
To  yield  to  the  pretensions  of  either  would  be  shaking  established 
principles;  and  though  Nichols  may,  perhaps,  have  ground  to  com- 
plain of  the  act  of  Lathrop  in  conveying  to  Miller,  instead  of  lending 
his  name  and  assistance  to  recover  the  possession  of  the  land  for 
him,  yet  that  consideration  cannot  affect  this  case.  In  the  action 
of  ejectment,  we  must  look  steadily  to  the  legal  title.  His  remedy, 
if  any,  must  be  against  Lathrop,  for  assuming  to  sell  when  he  was 
incapacitated  to  transfer  his  interest.  Nichols  cannot  interpose  in 
this  suit,  and  prevent  the  operation  of  the  deed  to  Miller.  As 
to  him,  it  is  res  inter  alios  acta.  He  must  stand  upon  the  strength 
of  his  own  demise. 

The  motion  to  set  aside  the  verdict  is,  therefore,  denied.1 


LIVINGSTON  v.  PROSEUS. 

2  Hill,  526.  —  1842. 

Ejectment.  —  Defendant  gave  in  evidence  a  lease  for  life  from 
plaintiff  to  one  Shultis  and  proved  that  Shultis  was  still  alive.  Plain- 
tiff, under  objection  and  exception,  proved  that  when  the  life  lease 
was  given  defendant  was  in  possession  of  the  premises,  claiming  to 
hold  adversely  to  plaintiff.   Verdict  for  plaintiff.   Motion  for  new  trial. 

Bronson,  J.  —  *  *  *  It  is  extremely  well  settled,  that  a  con- 
veyance of  lands  which  are  at  the  time  held  adversely  to  the  grantor, 
is  inoperative  and  void.  It  would  seem  to  follow  from  this  doctrine 
that  the  title  remains  in  the  grantor,  and  that  he  may  assert  it  in 
the  same  manner  as  though  the  deed  had  not  been  made.  But  it  is 
lly  well  settled,  that  as  between  grantor  and  grantee,  and  per- 
standing  in  legal  privity  with  them,  the  deed  is  operative  and 
passes  the  title.  Jackson  v.  Demont,  9  John.  R.  55;  Livingston  v. 
/'  nt  Tron  Co.,  9  Wend.  516,  per  Savage,  C.  J.;  I'a/i  Hoesen  v.  Ben- 
ham,  1  •-,  bl.  16 1.  From  these  two  propositions,  to  wit,  that  the 
owner  has  parted  with   his  title,  and  that  the  grantee  cannot  assert 


•Seethe   X.  V.    R.    I'.    I...   :   22^;   N.    V.    Penal    Code,    §§  129-131;  Code  Civ. 
Proi ..  ;'  1  -"i.      Ed. 


III.  4.]  ADVERSE    POSSESSION.  IO35 

it  on  account  of  the  adverse  holding  which  avoids  the  deed,  it  has 
been  supposed  to  result  as  a  necessary  consequence  that  the  title 
was  extinguished  or  lost.  But  it  has  been  denied  that  any  such  con- 
sequence follows.  Jackson  v.  Brinckerhoff,  3  John.  Cas.  101;  Jack- 
son v.  Vredenburgh,  1  John.  R.  159;  Williams  v.  Jackson,  5  Id.  489; 
Jackson  v.  Lcggctt,  7  Wend.  377.  Indeed,  it  m^y  be  laid  down  as  a 
maxim  in  the  law,  that  a  title  which  once  existed  must  continue  to 
reside  somewhere;  it  cannot  be  annihilated. 

The  whole  apparent  difficulty  arises  from  an  inaccurate  statement 
of  the  consequence  which  results  from  the  adverse  holding  at  the 
time  the  deed  is  executed.  It  is  often  said  in  the  books,  without 
any  qualification,  that  the  deed  is  void.  But  that  is  only  true  in 
relation  to  the  person  holding  adversely,  and  those  who  afterwards 
come  in  under  him.  As  to  all  the  rest  of  the  world  the  deed  is 
valid,  and  passes  the  title  from  the  grantor  to  the  grantee.  This  I 
think,  is  sufficiently  established  by  the  cases  already  mentioned  and 
the  authorities  on  which  they  rest.  The  deed  is  void  as  against  the 
party  who  might  otherwise  be  injured;  but  it  is  good  as  to  all 
others.  If  the  person  who  held  adversely  voluntarily  abandon  the 
possession,  there  can  be  no  doubt  that  the  grantee  may  enter  and 
enjoy  the  land.  Or,  if  after  such  abandonment  a  stranger  enter,  the 
grantee  may  bring  ejectment  and  oust  him.  The  stranger  was  in 
no  peril  of  being  injured  by  the  conveyance.  His  entry  was  tortious, 
and  he  shall  not  cover  himself  with  a  shield  which  belongs  to 
another,  between  whom  and  himself  there  is  no  legal  privity. 

But  as  against  the  person  holding  adversely,  the  deed  is  utterly 
void  —  a  mere  nullity.  There  was  an  attempt  to  convey,  but  the 
parties  failed  to  accomplish  the  object.  The  title  still  remains  in 
the  original  proprietor,  and  he  may  —  indeed,  must  —  sue  to  recover 
the  land.  It  is  true  that  the  recovery  will  inure  to  the  benefit  of  the 
grantee  in  the  deed;  but  that  is  a  matter  between  him  and  the 
grantor,  and  with  which  the  person  holding  adversely  has  nothing 
to  do.     It  is  enough  for  him  that  the  deed  does  him  no  injury. 

When  it  has  been  apprehended  that  a  deed  might  be  attacked  on 
the  ground  of  an  adverse  holding  at  the  time  it  was  made,  it  has 
been  usual  to  insert  counts  in  the  declaration  on  the  title  of  the 
grantor  and  the  grantee,  so  that  if  that  suit  failed  as  to  the  one,  it 
might  succeed  as  to  the  other.  Jackson  v.  Lcggctt,  7  Wend.  377. 
But  the  title  is  not  in  both  of  them,  and  it  is  but  a  poor  compliment 
to  the  law  as  a  science  that  it  cannot  decide  which  ought  to  sue.  It 
has,  I  think,  settled  the  question.  When  the  action  is  brought 
against  the  person  holding  adversely,  or  any  one  who  has  succeeded 
to  his  right,  the  grantor  must  sue.     But  as  against  a  stranger  —  one 


IO36  TITLE    BY   ORIGINAL   ACQUISITION.     [PT.  VI.  CM.  I. 

who  does  not  stand  in  legal  privity  with  him  who  held  adversely 
when  the  deed  was  made  —  the  grantee  must  sue.  In  cases  where 
the  grantor  may  sue,  he  must  of  necessity  be  allowed  to  show  the 
deed  void  when  the  defendant  attempts  to  set  it  up  to  defeat  a 
recovery.  Otherwise,  the  defendant  would  first  defeat  the  grantor 
by  showing  he  had  conveyed,  and  then  defeat  the  grantee  by  show- 
ing the  deed  void;  and  thus  we  might  come,  in  effect,  to  the  result 
of  extinguishing  a  good   title. 


IV.  Title  by  prescription. 

COOLIDGE  v.  LEARNED. 

S  Pickering,  504.  —  1829. 

Trespass  quare  clausum  f regit.  —  Defendant  pleaded  that  the 
locus  in  quo  had  been  an  open,  common,  public  landing-place  from 
time  immemorial.  Decision  below  for  defendant.  Plaintiff  moved 
for  a  new  trial. 

Wilde,  J.,  delivered  the  opinion  of  the  court. — The  plaintiff's 
counsel  except  to  the  direction  of  the  judge,  and  contend  that  no 
usage  commencing  within  the  time  of  legal  memory  is  sufficient  to 
establish  a  right  by  prescription ;  and  that  it  has  been  long  settled 
that  the  time  of  legal  memory  extends  back  to  the  commencement 
of  the  reign  of  Richard  I.,  so  that  in  this  country  no  prescriptive 
right  founded  on  immemorial  usage  can  be  maintained  by  the  princi- 
ples of  the  common  law. 

That  the  time  of  legal  memory,  according  to  the  law  of  England, 
extends  back  to  the  remote  period  contended  for  by  the  plaintiff's 
counsel,  cannot  be  denied;  but  for  what  reason,  or  for  what  purpose, 
such  a  limitation  should  have  been  continued  down  to  the  present 
day,  we  are  unable  to  ascertain.  Cruise  says,  "  that  it  seems  some- 
what extraordinary,  that  the  date  of  legal  prescription  should  con- 
tinue to  be  reckoned  from  so  distant  a  period."  And  to  us  it  seems, 
that  for  all  practical  purposes  it  might  as  well  be  reckoned  from  the 
time  of  the  creation.  The  limitation  in  question,  if  it  can  now  be 
•  1  a  limitation,  was  first  established  soon  after  the  St.  Westm. 
1  j  ed.  1,  C.  39,  and  was  founded  on  the  equitable  construction  of 
that  statute,  which  provided  that  no  writ  of  right  should  be  main- 
tained except  on  a  seisin  from  the  time  of   Richard  I. 

It  was  held  thai  an  undisturbed  enjoyment  of  an  easement  for  a 
period  of  time  suffii  ient  to  give  a  title  to  land  by  possession,  was 
sufficient  also   to   give  a  title   to  the  easement.      2  Roll.  Abr.  269;   2 


IV.  I  WHEN   TITLE   PERFECTED    BV    PRESCRIPTION.  IO37 

Inst.  238;  Rex  v.  Hudson,  2  Str.  909;  3  Stark,  on  Ev.  1205.  Upon 
this  principle  the  time  of  legal  memory  was  first  limited,  and  upon 
the  same  principle,  when  the  limitation  of  a  writ  of  right  was  reduced 
by  the  statute  of  32  Hen.  8,  c.  2,  to  sixty  years,  a  similar  reduction 
should  have  been  made  in  the  limitation  of  the  time  of  legal  mem- 
ory. This  was  required,  not  only  by  public  policy,  to  quiet  long 
continued  possessions,  but  by  a  regard  to  consistency,  as  it  would 
have  been  only  following  up  the  principle  upon  which  the  first  limi- 
tation was  founded. 

And  of  this  opinion  was  Rolle,  2  Roll.  Abr.  269,  though  he  admits 
that  at  his  time  the  practice  was  otherwise.  Why  the  opinion  of 
this  eminent  judge,  founded  as  it  was  on  reasoning  so  solid  and  sat- 
isfactory, was  not  adopted  by  the  courts,  does  not  appear.  But  it 
does  appear  that  the  principle  on  which  his  opinion  was  founded, 
was  respected,  and  carried  into  operation  in  another  form.  For 
although  the  courts  continued  to  adhere  to  the  limitation  before 
adopted,  yet  the  long  enjoyment  of  an  easement  was  held  to  be  a 
sufficient  reason,  not  only  to  authorize,  but  to  require  the  jury  to 
presume  a  grant.  And  it  has  long  been  settled  that  the  undisturbed 
enjoyment  of  an  incorporeal  right  affecting  the  lands  of  another  for 
twenty  years,  the  possession  being  adverse  and  unrebutted,  imposes 
on  the  jury  the  duty  to  presume  a  grant,  and  in  all  such  cases  juries 
are  so  instructed  by  the  court.  Not,  however,  because  either  the 
court  or  jury  believe  the  presumed  grant  to  have  been  actually 
made,  but  because  public  policy  and  convenience  require  that  long 
continued  possession  should  not  be  disturbed. 

The  period  of  twenty  years  was  adopted  in  analogy  to  the  statute 
of  limitations,  by  which  an  adverse  possession  of  twenty  years  was 
a  bar  to  an  action  of  ejectment,  and  gave  a  possessory  title  to  the 
land.  Thus  it  appears,  that  although  prescriptive  rights  commenc- 
ing after  the  reign  of  Richard  I.  are  not  sustained  in  England,  yet  a 
possession  of  twenty  years  only  is  sufficient  to  warrant  the  presump- 
tion of  a  grant;  which  is  the  foundation  of  a  doctrine  of  prescrip- 
tion. In  the  one  case  the  grant  is  presumed  by  the  court,  or  rather 
is  presumed  by  the  law,  and  in  the  other  case  it  is  presumed  by  the 
jury  under  the  direction  of  the  court  The  presumption  in  the  lat- 
ter case  is  in  theory,  it  is  true,  a  presumption  of  fact,  but  in  prac- 
tice and  for  all  practical  purposes,  it  is  a  legal  presumption,  as  it 
depends  on  pure  legal  rules;  and  as  Starkie  remarks,  "  it  seems  to 
be  very  difficult  to  say,  why  such  presumptions  should  not  at  once 
have  been  established  as  mere  presumptions  of  law,  to  be  applied  to 
the  facts  by  the  courts,  without  the  aid  of  a  jury.  That  course  would 
certainly  have  been  more  simple,  and  any  objection,  as  to  the  want 


IO38  TITLE    BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH    I. 

of  authority,  would  apply  with  equal  if  not  superior  force  to  the 
establishing  such  presumptions  indirectly  through  the  medium  of  a 
jury." 

But  however  this  may  be,  it  is  clear  that  when  the  law  became 
settled  as  it  now  is,  and  a  party  was  allowed  to  plead  a  non-existing 
grant,  and  the  jury  were  bound  to  presume  it,  on  proof  of  twenty 
years'  possession,  he  would  hardly  be  induced  to  set  up  a  prescrip- 
tive right;  and  the  limitation  of  legal  memory  thus  became  in  most 
cases  of  very  little  importance.  And  this  is  probably  the  reason 
why  the  period  of  legal  memory,  as  it  was  limited  soon  after  the 
statute  of  Westm.  1,  has  been  suffered  to  go  on  increasing  to  the 
present  time,  although  it  has  long  since  ceased  to  be  of  any  practi- 
cal utility,  and  is  utterly  inconsistent  with  the  principle  on  which 
the  limitation  was  originally  founded. 

The  question,  then,  is  whether  the  courts  of  this  country  were  not 
at  liberty  to  adopt  the  English  law  of  prescription,  with  a  modifica- 
tion of  the  unreasonable  rule  adhered  to  by  the  English  courts  in 
regard  to  the  limitation  of  the  time  of  legal  memory.  Certainly 
the  law  without  the  rule  of  limitation  might  have  been  adopted,  and 
the  courts  here  had  competent  authority  to  establish  a  new  rule  of 
limitation  suited  to  the  situation  of  the  country.  They  had  the  same 
authority  in  this  respect,  that  the  courts  in  England  had  to  establish 
the  English  rule  of  limitation.  This  rule  could  not  be  adopted  here 
without,  a  modification,  and  it  was  modified  accordingly;  and  in 
conformity  with  the  principle  of  the  English  rule  of  limitation. 
This  cannot  be  ascertained  with  certainty,  but  it  is  evident  that  the 
English  rule  could  not  have  been  adopted,  and  it  is  to  be  presumed 
that  the  period  of  sixty  years  was  fixed  upon  as  the  time  of  limita- 
tion, in  analogy  to  the  statute  of  32  Hen.  8,  c.  2,  and  in  conformity 
with  the  opinion  of  Rolle.  At  what  period  of  our  history  the  law  of 
prescription  was  first  introduced  into  practice  in  the  courts  of  Massa- 
chusetts, cannot  now  be  determined,  but  certainly  it  was  before  the 
time  of  legal  memory,  as  we  understand  the  limitation  of  it;  and 
innumerable  pleas  of  prescriptive  rights  are  to  be  found  in  the 
records  of  our  courts.  So  the  cases  reported  by  Dane  show  that  the 
doctrine  of  prescription  has  been  repeatedly  recognized  and  sanc- 
tioned by  this  court.  3  Dane,  253,  c.  79,  art.  3,  §19.  The  only 
question  has  been,  whether  our  time  of  legal  memory  was  limited  to 
sixty  years,  or  whether  it  was  to  extend  to  a  period  beyond  which 
no  memory  or  record  goes  as  to  the  right  in  question.  The  general 
opinion,  we  think,  has  been  in  favor  of  the  limitation  of  sixty  years; 
and  we  think  it  dei  i  <  1  <  •  <  1 1  y  the  better  opinion.  This  seems  to  us  a 
'liable  limitation,  and,  as   before  remarked,  it   is  founded  on  the 


IV.]  WHEN   TITLE   PERFECTED    BY    PRESCRIPTION.  IO39 

principle  of  the  English  rule  of  limitation,  which  was  adopted  in 
reference  to  the  limitation  of  the  writ  of  right  by  the  statute  of 
Westm.  1.  Whether  since  the  writ  of  right  has  been  limited  to  forty 
years,  a  similar  limitation  of  the  time  of  legal  memory  ought  to  be 
adopted  is  a  question  not  raised  in  this  case,  and' upon  which  we  give 
no  opinion. 

The  case  of  Ackerman  v.  Shelp,  3  Halst.  125,  has  been  cited,  to 
show  that  the  doctrine  of  prescription  has  not  been  adopted  in  New 
Jersey;  but  this  is  no  reason  why  it  should  be  rejected  in  Massachu- 
setts, where  it  has  long  since  been  adopted,  and  is  now  familiar  in 
practice;  adopted,  too,  not  only  by  the  authority  of  our  courts,  but 
with  the  implied  sanction  of  the  Legislature.  As  early  as  the  year 
1641,  it  was  ordered  and  decreed  by  the  Colonial  Legislature,  that  no 
custom  or  prescription  should  prevail  in  any  moral  case,  that  is,  as 
it  was  declared,  "  to  maintain  anything  that  could  be  proved  to  be 
morally  sinful  by  the  word  of  God."  Ancient  Charters,  etc.,  177. 
This  provision,  it  is  true,  manifests  great  ignorance  of  the  principles 
of  the  common  law,  and  for  the  purpose  for  which  it  was  framed  was 
useless  and  inoperative.  It  serves,  nevertheless,  to  show  that  when 
afterwards  the  doctrine  of  prescription  was  introduced  into  practice, 
it  was  not  done  without  the  countenance  of  the  Legislature;  although 
certainly  no  legislative  authority  was  necessary  to  give  it  validity. 

But  it  has  been  argued,  that  the  right  set  up  by  the  defendant  can- 
not be  maintained,  by  the  principles  of  the  common  law,  as  a  right 
by  prescription,  or  as  a  custom.  The  cases,  however,  cited  in  sup- 
port of  this  argument,  refer  either  to  private  rights  or  local  customs. 
The  right  in  question  is  a  public  prescriptive  right,  and  as  such  it  is 
well  pleaded.  It  is  similar  to  the  easement  which  the  public  has  in 
highways,  and  may  well  be  prescribed  for.  In  pleading  such  a  pub- 
lic right  to  an  easement,  it  is  sufficient  to  aver  that  the  locus  in  quo 
is  a  public  highway  or  public  landing-place,  etc.,  without  showing 
how  it  became  so;  for  it  cannot  be  presumed  that  every  party  has 
knowledge  of  the  origin  of  a  public  right.  Aspindall  v.  Brown,  3  T. 
R.  265;  3  Chit.  Crim.  Law,  570;  3  Dane,  248;  Commonwealth  v. 
Manning,  S.  J.  Court,  Essex  County,  1795,  m  3  Dane,  19,  c.  71,  art. 
5,  §§  8,  9,  10;   Gateward 's  Case,  6  Co.   60,  61. 


HUBBARD  v.  TOWN. 

33  Vermont,  295. — 1860. 
{Reported  herein  at  p.  840.  ]' 


1  See  also  Robeson  v.  Pittenger,  supra,  p.  837.  —  Ed. 


1040  TITLE   BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

V.  Title  by  the  statute  of  limitations. 

i.    Essentials  for  Such  Title. 

a.   A  disseisin  and  an  adverse  possession.1 

b.    The  adverse  possession  must  be  continuous  for  the  term  fixed 
by  the  statute.*      Tacking. 

HUGHS  v.  PICKERING. 

14  Pennsylvania  State,  297 —  18S0. 

Ejectment.  —  Judgment  for  plaintiff.      Defendant  brings  error. 

Rogers,  J.  —  The  plaintiff  exhibits  in  evidence  a  perfect  legal  title 
to  the  premises  in  controversy.  This  is  admitted,  but  the  defend- 
ant relies  on  the  act  of  limitations.  The  suit  was  instituted  the  19th 
March,  1847;  the  title  under  which  the  defendant  claims  commenced 
in  May,  1825,  so  that  more  than  twenty-one  years  elapsed  from  the 
commencement  of  the  title  until  the  institution  of  the  suit. 

To  acquire  a  right  by  the  act  of  limitations  requires  a  possession 
of  twenty-one  years,  actual,  visible,  continued,  notorious,  distinct, 
and  hostile.  The  plaintiff  contends  he  is  not  barred  because  the 
possession  was  not  a  continued  possession;  but  that  the  possession 
was  interrupted  in  its  transmission  from  Mason,  the  first  intruder,  to 
Hughs,  the  defendant.  On  this  point  the  cause  mainly  turns. 
Mason  proves  that  he  made  the  first  improvement  in  May,  1825; 
that  he  deadened  trees  in  May,  grubbed  six  acres  in  June,  chopped 
logs  and  saplings  on  four  acres,  burnt  brush,  chopped  logs  in  July, 
and  that  he  had  a  shanty  on  the  place,  about  ten  by  twelve  feet 
square.  That,  being  about  to  leave  the  property,  he  told  his  sister, 
the  widow  of  Israel  Bartlett,  that  she  might  take  his  right  and  sell 
it,  and  if  she  could  get  anything  for  it,  well  and  good.  Whether  we 
consider  this  transaction  as  a  parol  sale,  or  gift,  or  an  authority  to 
sell,  is,  perhaps,  of  but  little  consequence.  But  that  it  was  the  lat- 
ter, in  the  estimation  of  the  parties,  at  least,  would  appear  from 
their  subsequent  conduct;  for,  after  selling  to  Hughs,  who  took  pos- 
session  in  pursuance  of  the  contract,  she  paid  over  to  her  brother  one- 
half  of  the  purchase  money.  Coupling  this  with  the  words  used,  it 
indicates  rather  a  power  of  sale  than  a  gift  or  sale  to  her.  But  be 
that  as  it  may,  is  the  agreement  between  Mrs.  Bartlett  and  Hughs, 
subsequently  ratified  by  Mason  receiving  half  the  purchase  money, 
possession  taken  in  pursuance  of  it,  to  be  viewed  as  a  separate,  dis- 


1  See  above,  pp,  loi  j  ro2  j,       1  Id. 

1  See  N.  Y.  (  ode  (  iv.  Pro<  ..  .':'  362-375.  -     Ed. 


V.   i.]  STATUTE   OF   LIMITATIONS.  IO4I 

tinct  trespass,  or  is  it  a  continuation  of  the  original  trespass?  In 
other  words,  has  Hughs  the  right  to  tack  Mason's  possession,  for 
which  he  paid  value,  to  his  own,  so  as  to  bar  plaintiff's  right?  Had 
Mason  abandoned  the  property  absolutely,  or  had  Hughs  taken  pos- 
session without  authority,  these  would  present  such  a  want  of 
continuity  as  would  be  fatal  to  the  defense.  But  does  this  appear? 
These  are  points  which  the  jury  must  decide.  4  Watts,  409;  Simp- 
son v.  AIcBeth,  5  Watts,  441 ;  Fish  v.  Brown.  In  Cunningham  v. 
Patton,  6  Barr.  355,  it  is  ruled  that  when  adverse  possession  is 
proved  by  parol  testimony  only,  it  is  a  question  for  the  jury  whether 
it  is  continuous.  Indeed,  when  there  is  a  spark  of  evidence,  a  ques- 
tion of  fact  must  be  submitted  to  the  jury  as  the  legitimate  triers  of 
it.  Bank  of  Pittsburgh  v.  Whitehead,  et  a/.,  10  Watts,  397.  The 
facts  which  particularly  bear  on  this  point  are  these :  Under  authority 
derived  from  Mason,  Mrs.  Bartlett  sells  to  Hughs;  Mason  receives 
one-halt  of  the  purchase  money,  and,  under  this  contract,  Hughs 
enters,  and  ever  since  has  been  in  the  actual  possession  of  the  land. 
That  Hughs  was  a  trespasser  as  to  the  plaintiff,  may  be  admitted ;  but 
was  he  a  trespasser  as  to  either  Mason  or  Mrs.  Bartlett,  who  sold 
their  right  in  the  property,  whatever  it  was,  and  received  the  purchase 
money?  Under  such  a  state  of  facts,  it  is  clear  that  no  action  of 
trespass  could  be  sustained  by  either  of  them.  The  court  would  seem 
to  be  under  the  impression  that  unless  Mason  was  in  the  actual  posses- 
sion at  the  time  of  the  contract,  the  law  would  not  unite  the  possession 
to  the  title;  that  the  continuity  of  possession  which  the  law  requires 
cannot  be  preserved,  unless  there  is  actual,  continued  possession  of 
the  premises.  So  I  understand  the  court,  and,  if  so,  the  point  is 
ruled  in  direct  opposition  to  Sailor  v.  Uertzog,  4  Whar.  272.  In 
that  case  it  was  insisted  the  continuity  of  possession  was  destroyed 
by  the  interruption  of  the  actual  possession;  that  the  premises  had 
been  vacant  about  the  year  1815,  an  important  period  in  the  title, 
bearing  directly  on  the  defense  under  the  statute.  But  the  judge 
who  tried  the  cause  at  nisi  prius,  afterwards  affirmed  by  the 
Supreme  Court,  says:  "  That  in  order  to  destroy  the  continuity  of 
possession,  the  vacancy  must  not  be  merely  occasional,  such  as 
occurs  in  every  case  where  a  party,  for  some  cause,  unable  to  obtain 
a  tenant,  shuts  up  his  property  for  a  short,  or,  indeed,  for  a  long 
time.  When  the  possession  is  abandoned  for  any  time,  or  when  a 
person  takes  possession  of  the  property  in  dispute,  or  is  totally 
unconnected  with  the  previous  holder,  it  prevents  the  operation  of 
the  act,  because  the  continuity  of  possession,  which  is  essential  to  a 
title  under  the  act  of  limitation,  is  broken.  It  is  a  principle  of  law, 
it  is  true,  that  when  the  possession  is  vacant,  the  law  casts  the  posses- 
[law  of  prop  in  land.  —  66.] 


1042  TITLE   BY   ORIGINAL   ACQUISITION.     [PT.  VI    CH.  I. 

sion  on  the  legal  owner.  But  the  question  is,  what  is  such  a  vacancy 
of  possession  as  produces  this  effect?  And  when  we  have  seen  that 
the  vacancy  must  be  not  merely  occasional,  but  the  title  of  the  sub- 
sequent holder  must  be  unconnected  with  the  title  of  the  previous 
holder.  There  must  be  a  want  of  privity  of  contract,  for,  when  the 
subsequent  holder  enters  with  the  assent  and  permission  of  the 
previous  holder,  the  former  has  the  right  to  tack  one  possession  to 
another.  That  actual  possession  is  not  required,  is  also  shown  in 
Porter  v.  McGinnis,  i  Barr.  413. 


HAYNES  v.  BOARDMAN. 

119  Massachusetts,  414.  — 1875. 

Writ  of  Entry. — Plea  mil  disseisin.  Verdict  for  demandant. 
Tenant  alleges  exceptions  which  appear  below. 

Colt,  J.  —  There  was  evidence  tending  to  show  adverse  possession 
of  the  demanded  premises,  commencing  with  the  occupation  of  Mrs. 
Atwood  in  1832,  and  continued  until  her  death  in  1847.  She  devised 
all  her  real  estate  to  Susanna  Gage  for  her  life,  remainder  in  fee  to 
the  demandant.  The  possession  was  continued  in  Susanna  until  her 
death  in  1863,  and  by  the  demandant  until  shortly  before  the  com- 
mencement of  this  action.  The  principal  question  is  whether  there 
was  that  privity  of  estate  between  the  testatrix  and  her  devisees 
which  is  required  to  establish  title  by  continuous  adverse  possession. 

It  is  settled  that  the  disseisin  of  an  heir,  devisee  or  grantee  may 
be  tacked  to  that  of  an  ancestor,  devisor  or  grantor,  to  create  title 
by  adverse  possession.  Leonard  v.  Leonard,  7  Allen,  277;  Melvin  v. 
Proprietors  of  Locks  and  Canals,  5  Met.  15,  32.  Such  adverse  pos- 
session continued  for  twenty  years  affords  a  conclusive  presumption 
of  grant  to  the  first  occupant. 

It  is  claimed  that  there  is  no  such  privity  between  the  life  tenant 
and  the  remainderman,  because  the  latter  in  no  sense  claims  under 
the  former.  But  the  answer  is,  that  both  claim  under  the  same  will 
by  one  title.  The  disseisin,  which  was  commenced  by  the  testatrix,  is 
continued  by  each  in  accordance  with  that  title,  and  is  referred  by 
each  only  to  the  entry  of  the  testatrix.  There  has  been  no  loss  of 
possession;  no  restoration  of  the  seisin  to  the  true  owner;  no  new 
entry.  The  disseisin  which  commenced  with  the  testatrix  has  been 
<  ontinuous  in  her  devisees,  and  establishes  her  title  by  lapse  of  time. 
It  is  plainly  distinguished  from  a  case  of  successive  entries  and  new 
ins  by  different  and  independent  parties.  It  does  not  follow, 
b<  1  ause  no  act  of  the  life  tenant  in  disparagement  of  his  title,  and 


V.   i. "I  STATUTE   OK    LIMITATIONS.  IO43 

no  disseisin  of  him,  will  be  permitted  to  injure  the  remainderman, 
that  an  adverse  possession  maintained  by  the  tenant,  under  his 
title,  will  not  inure  to  the  benefit  of  the  former.  The  test  of  title  is 
that  there  has  been  no  interruption  of  possession,  and  no  new  entry 
required.  If  the  possession  ends  before  the  expiration  of  the  time 
required  to  establish  the  presumption,  the  seisin  of  the  true  owner 
is  restored,  and  he  comes  in  by  right,  and  not  by  disseisin,  as 
against  all  parties. 

The  other  question  relates  to  the  effect  to  be  given  to  the  alleged 
payment  of  rent  to  the  owner  made  by  tenants  of  the  demandant, 
and  those  in  privity  with  him,  in  occupation  of  the  demanded 
premises.  There  was  evidence  that  some  of  the  acts  of  those  who 
occupied  under  the  testatrix  and  life  tenant  were  permissive,  and 
the  jury  were  told  that  the  demandant  could  not  have  the  benefit  of 
such  acts,  unless  they  were  satisfied  that  they  were  under  the 
authority  or  direction  of  Atwood  or  Gage.  Full  instruction  was  also 
given  as  to  what  constituted  adverse  possession.  And  it  cannot  be 
stated  as  matter  of  law  that  the  payment  of  rent,  or  an  admission  of 
title,  by  a  tenant  of  the  demandant  or  his  grantor,  without  the 
knowledge  of  his  landlord,  would  alone  operate  to  interrupt  an  other- 
wise continuous  adverse  occupation. 

Exceptions  overruled. 


c.   Exceptions  in  favor  of  persons  under  a  disability. 
HOWELL  v.  LEAVITT. 

95  New  York,  617.  —  1884. 

Finch,  J.  —  In  February,  1856,  Roberts  became  the  owner  of  the 
premises  in  dispute,  having  good  title  thereto,  but  subject  to  a  pur- 
chase-money mortgage  of  $5,500  given  by  him  to  Leech.  A  few 
months  later  Roberts  conveyed  to  Tasker,  subject  to  the  $5,500 
mortgage,  the  latter  executing  also  his  own  mortgage  to  Roberts  for 
$1,800.  Still  later  in  the  same  year  Tasked  conveyed  to  Ephraim 
Howell,  subject  to  the  Leech  mortgage  of  $5,500,  but  the  deed  mak- 
ing no  reference  to  the  $1,800  mortgage.  On  the  18th  of  September, 
1857,  Roberts  filed  a  complaint  for  the  foreclosure  of  the  $1,800 
mortgage,  naming  Tasker  and  Howell  and  wife  as  defendants,  and 
Mrs.  Howell  was  served  November  17th  of  that  year.  In  the 
previous  month  of  October,  Howell  died,  although  the  fact  of  his 
death  was  for  some  time  after  unknown.  An  order  of  publication 
was  made,  and  in  the  end,  judgment  of  foreclosure  was  rendered; 


1044  TITLE    BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

the  property  was  sold  to  Roberts,  the  mortgagee,  who  by  the  aid  of 
a  writ  of  assistance,  put  Tasker  out  and  got  into  possession.  At 
this  date,  and  at  the  date  of  the  commencement  of  the  foreclosure 
action,  Howell  being  dead,  the  title  had  descended  to  his  five  children, 
who  were  all  infants,  the  eldest  being  about  fourteen  years  of  age, 
and  the  youngest  only  about  one.  The  possession  of  Tasker  after 
his  deed  to  Howell  must  be  assumed  to  have  been  as  tenant  under 
Howell,  and  upon  his  death  as  the  tenant  of  his  children,  so  that 
Tasker's  possession  was  theirs  When  he  was  expelled  their  pos- 
session was  taken  away.  But  the  judgment  of  foreclosure  did  not 
affect  them,  for  the}7  were  in  no  manner  parties  to  it,  and  as  to  them 
it  was  an  absolute  nullity.  Possession  of  their  property  was  taken 
from  them,  not  only  without  their  consent,  but  against  their  will, 
and  by  a  force  which  had  no  right  or  authority  behind  it,  but  was  in 
all  respects  a  trespass.  After  thus  forcing  out  the  true  owners. 
Roberts  paid  off  and  discharged  the  $5,500  mortgage,  and  then  sold 
the  property,  and  the  present  defendants  are  his  grantees  and  seek 
to  defend  the  ejectment  brought  by  the  true  owners,  who  were  thus 
dispossessed  by  unlawful  force,  upon  the  alleged  right  of  Roberts  as 
mortgagee  in  possession.  In  most  of  the  cases  which  have  upheld 
the  right  of  the  mortgagee,  his  possession  was  obtained  with  the 
consent,  express  or  implied,  of  the  owner  of  the  land,  although  in 
some  of  them  the  mode  of  acquiring  possession  did  not  distinctly  ap- 
pear, and  in  many  the  rule  is  stated  quite  broadly  and  with  little  of 
restriction  or  limitation.  Van  Duyne  v.  Thayre,  14  Wend.  233;  Phyfe 
v.  Riley,  15  Id.  248;  Fox  v.  Life,  24  Id.  164;  Olmsted  v.  Elder,  5  N.  Y. 
144;  Mickles  v.  Dillaye,  17  Id.  80;  Mickles  v.  Townsend,  18  Id.  575: 
Chase  v.  Peck,  21  Id.  581;  Waring  v.  Smyth,  2  Barb.  Ch.  135;  Pell 
v.  Ulmar,  18  N.  Y.  139;  Robinson  v.  Ryan,  25  Id.  320;  Winslow  v. 
Clark,  47  Id.  261;  Madison  Avenue  Baptist  Church  v.  01.  Street  Baptist 
Church,  73  Id.  82;   Gross  v.   Welwood,  90  Id.  63S. 

It  is  scarcely  necessary  to  review  the  authorities  and  consider  them 
in  detail,  for  none  of  them  have  ever  gone  so  far  as  to  hold  that  a 
possession  of  the  mortgagee  acquired  by  cither  force  or  fraud, 
against  the  will  and  consent  of  the  rightful  owner,  and  without  even 
1  olor  of  lawful  authority  as  it  respects  such  owner,  and  amounting 
only  to  a  pure  trespass,  was  sufficient  to  defend  an  action  of  eject- 
ment.  The  possession  requisite  for  such  a  defense  must  have  about 
it  at  least  sonic  basis  of  right  as  against  the  owner  evicted.  Often 
his  assent  or  acquiescence  may  be  inferred  from  slight  circum 
stances,  bul  the  righl  cannol  I"-  founded  upon  an  absolute  wrong. 
'I  0  Id  thai  one  who  has  merely  a  lien,  and  but  an  equitable  right. 
.       get  a  legal  one  by  the  commission  of  a  trespass  would  be  neither 


V.   i.]  STATUTE   OF    LIMITATIONS.  IO45 

logical  nor  just.  It  is  easy  to  understand  how  some  of  the  very 
broad  statements  of  the  right  of  the  mortgagee  in  possession  origi- 
nated. Before  the  Revised  Statutes,  and  in  the  earlier  consideration 
of  mortgage  relations,  the  mortgagee,  after  condition  broken,  was 
deemed  to  have  the  legal  estate  in  the  land.  Of  course  his  entry 
upon  the  premises  would  be  the  entry  of  an  owner  and  both  rightful 
and  lawful  if  effected  without  a  breach  of  the  peace.  His  possession, 
however  acquired,  unless  by  actual  violence,  was  lawful  as  that  of 
an  owner  taking  possession  of  his  own.  But  when  the  Revised 
Statutes  denied  him  an  action  of  ejectment,  and  the  progress  of 
judicial  decision  deprived  him  of  the  least  estate  in  the  land,  and  left 
him  with  only  a  lien,  it  followed  that  after  as  well  as  before  condition 
broken  the  mortgagor  remained  owner,  and  could  not  be  lawfully 
deprived  of  his  possession,  except  by  a  valid  foreclosure  or  his  own 
consent,  express  or  implied.  And  yet  the  old  rule,  founded  upon 
and  fitted  to  a  different  state  of  the  law,  kept  its  hold  somewhat  upon 
the  later  opinions  when  the  reason  which  led  to  it  was  gone. 

But  we  need  not  determine  its  present  extent  beyond  the  exigency 
of  the  case  before  us.  Here  the  infant  owners,  without  even  a  suit 
instituted  against  them;  so  far  as  we  know  without  notice  or  warn- 
ing or  the  least  opportunity  to  protect  their  rights;  were  expelled 
from  their  property  against  their  wills  by  a  force  which  their  tenant 
could  not  resist.  The  expulsion  was  not  only  unlawful  as  to  these 
plaintiffs,  but  without  the  least  shadow  or  pretense  of  right,  since 
the  judgment  under  which  the  writ  issued  was  not  against  them  and 
was  absolutely  a  nullity  so  far  as  their  rights  were  concerned. 
A  possession  thus  acquired  by  Roberts  could  not  be  maintained 
against  the  ejectment  of  the  owners  because  he  was  mortgagee.  In 
this  respect  we  think  the  decision  of  the  General  Term  was  correct. 

It  is  further  contended  that  the  statute  of  limitations  barred  the 
right  of  Louise  M.  Howell.  The  facts  were,  that  she  became  of 
age  December  31,  1864;  that  Roberts  got  possession  claiming  title 
as  owner  March  15,  1S5S;  and  the  action  was  begun  November  7, 
1878.  The  appellants'  construction  of  the  Code  (§  88,  Code  of  Civ. 
Pro.  §  375),  is  in  substance  that  where  there  is  a  disability  the  action 
must  be  brought  within  ten  years  after  its  termination;  and  Louise 
Howell,  having  reached  full  age  December  31,  1864,  had  only  until 
December  31,  1S74,  in  which  to  sue.  The  effect  of  this  contention 
would  be  to  cut  down  the  twenty-years'  limitation  to  a  little  over 
sixteen  years  by  reason  of  a  disability  of  infancy.  In  a  case  where 
the  cause  of  action  accrued  to  an  infant  twenty  years  of  age  the 
limitation  would  be  cut  down  to  eleven  years;  and  that  which  was 
intended  for  fhe  relief  and  benefit  of  a  person  under  disability  is 


IO4O  TITLE    BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

made  to  operate  as  a  positive  injury.  We  have  already  declined  to 
adopt  that  construction.  Acker  v.  Acker,  16  Hun,  174;  81  N.  Y. 
143.  The  exception  of  the  Code  relates  to  the  extension  of  the  time 
limited,  and  puts  restraint  only  upon  that  extension.  It  means 
that  the  disability  shall  not  add  more  than  ten  years  to  the  time 
limited  after  the  disability  has  ended.  Practically,  in  a  case  of 
infancy,  it  makes  the  extreme  possible  limitation  a  period  of  thirty- 
one  years.  If  the  cause  of  action  accrues  to  an  infant  on  the  day  of 
its  birth  for  twenty-one  years  the  running  of  the  statute  is  supended; 
then  it  begins  to  run;  but  the  time  limited  — that  is,  the  twenty 
years  considered  as  a  period  —  having  in  fact  elapsed,  it  is  an  exten- 
sion of  that  period  which  is  in  progress,  and  the  exception  limits 
that  added  time  to  not  more  than  ten  years  after  full  age,  that  is, 
until  the  expiration  of  thirty-one  years.  But  for  the  exception  the 
infant  would  have  had  forty-one  years.  In  the  present  case  Louise 
Howell  had  twenty  years  from  December  31,  1864,  in  which  to  sue, 
because  giving  her  the  full  time  of  twenty  years  after  that  date  did 
not  extend  the  whole  time  from  the  accruing  of  the  cause  of  action 
more  than  ten  years  added  after  she  arrived  at  full  age.  Giving  her 
till  1884  made  the  whole  period  from  the  entry  of  Roberts  less  than 
twenty-seven  years,  so  that  her  infancy  extended  the  twenty  years, 
the  time  limited,  only  about  seven  years,  and  so  did  not  violate 
the  exception.  What  there  is  of  difficulty  in  the  section  lies  in  the 
phrase  "  after  the  disability  ceases."  That  relates  only  to  the 
extended  time,  and  has  no  effect  in  any  case  to  cut  down  or  lessen 
the  limitation  of  twenty  years.  To  that  the  party  is  always  entitled, 
and,  in  case  of  a  disability,  to  as  much  more  as  the  period  of  disability 
would  add,  except  that  such  addition  must  not  be  longer  than  ten 
years  added  after  the  disability  has  ended.  Any  unexpended  part  of 
the  period  or  time  fixed  by  the  general  rule  of  limitation  belongs  to 
the  party  entitled  to  sue,  after  the  disability  has  ended,  and  so  much 
added  time  as  will  not  extend  the  original  limit  beyond  ten  years 
more  after  the  end  of  the  disability.  The  right  of  Louise  M.  Howell 
v,  as,  therefore,  not  barred. 

Judgment  affirmed.1 

1  See  §  375,  N.  Y.  Code  Civ.  Proc.  —  Ed. 


V.   I.]  STATUTE   OF   LIMITATIONS.  IO47 

DEMAREST  v.  WYNKOOP. 
3  Johnson's  Chancery  (N.  Y.),  129.  —  1817. 

The  Chancellor. —  This  is  a  suit  to  redeem  a  mortgage,  exe- 
cuted as  early  as  177 1.  Persons  claiming  an  estate,  in  fee,  under  the 
mortgagee,  have  been  in  possession  of  the  mortgaged  premises  since 
May,  1788,  or  twenty-seven  years  before  the  filing  of  the  bill. 

Several  objections  have  been  taken  to  the  suit. 

1.  The  length  of  possession  is  set  up,  and  relied  upon,  in  the 
answer,  as  a  bar  to  the  claim. 

It  is  a  well-settled  rule,  that  twenty  years'  possession,  by  the  mort- 
gagee, without  account  or  acknowledgment  of  any  subsisting  mort- 
gage, is  a  bar  to  a  redemption,  unless  the  mortgagor  can  bring 
himself  within  the  proviso  in  the  statute  of  limitations.  This 
proviso  saves  the  rights  of  infants,  femes  coverts,  etc.,  if  they  bring 
their  action  within  ten  years  after  their  disability  removed.  The 
analogy  between  the  right  to  redeem  in  this  court,  and  the  right  of 
entry  at  law,  is  presumed  complete  and  entire  throughout,  so  that  the 
mortgagor  who  comes  to  redeem,  after  the  twenty  years,  must  show 
himself  within  one  of  the  exceptions  that  would  save  his  entry  or 
ejectment  at  law;  and  he  must,  likewise,  show  that  he  had  filed  his 
bill  within  ten  years  after  his  disability  ceased.  The  cases  which  I 
have  looked  into,  and  to  which  I  now  refer,  are  uniform  in  support 
of  this  just  and  necessary  rule;  and  the  construction  of  the  statute 
is  the  same  here  as  at  law.  The  same  limitations  are  adopted,  with 
the  allowance  of  the  same  time  for  disabilities.  Jenner  v.  Tracey, 
note  to  3  P.  Wms.  287;  Belch  v.  Harvey,  lb.  and  in  app.  No.  12  to 
Sugden's  Law  of  Vendors,  3d  ed. ;  Lord  Kenyon  in  Bonny  v.  Rid- 
gard,  cited  in  17  Vesey,  99;  Lord  Camden,  in  3  Bro.  639,  note; 
Anon.  3  Atk.  313;  Aggar  v.  Pickerell,  3  Atk.  225;  Lord  Rosslyn,  in 
Lytton  v.  Lytton,  4  Bro.  458;  Hodle  v.  Haley,  1  Vesey  &  B.  536; 
Reeks  v.  Postlethwaite,  Cooper's  Eq.  Rep.  161 ;  Bairon  v.  Postlethwaite, 
Cooper's  Eq.  Rep.  161;  Bairon  v.  Martin,  Id.  189;  Moor  v.  Cable ■ 
1  Johns.  Ch.  Rep.  385. 

In  this  case,  Daniel  Ludlow,  who  claimed  the  mortgage,  took  a 
deed,  in  fee,  on  the  7th  of  May,  1788,  from  Banta,  one  of  the  mort- 
gagors, and  from  Nagel  and  his  wife,  who  was  one  of  the  heirs  of 
Banta's  wife,  the  other  mortgagor.  From  that  time,  we  are  to  con- 
sider the  representative  of  the  mortgagee  in  possession,  claiming  to 
hold  the  land,  not  in  trust,  or  mortgage,  but  adversely,  and  in  his 
own  right.  At  that  time,  the  plaintiff,  Hannah  Demarest,  was  an 
infant  of  the  age  of  seven  years,  and  entitled  to  ail  the  equity  of 
redemption  which  she  now  sets  up.     She  was  of  age  in  1802,  and 


IO48  TITLE    BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CIL  I. 

her  bill  was  not  filed  till  1815,  so  that  not  only  the  twenty  years  had 
elapsed  since  the  mortgagee's  possession,  but  the  ten  years  since 
her  disability  of  infancy  ceased.  She  had  then  lost  her  equity  of 
redemption  by  lapse  of  time.  It  is  true  she  has  not  had  twenty  full 
years,  free  of  disability,  to  redeem,  but  she  has  had  ten  years  free  of 
disability,  and  more  than  twenty  years  in  the  whole  have  elapsed, 
and  this  is  all  that  the  statute  allows.  For  this  purpose  I  may  refer 
to  the  observations  which  I  made  in  the  Supreme  Court,  in  the  case 
of  Smith  v.  Bartis,  9  Johns.  Rep.  181,  and  which  appear  to  me  to  be 
founded  on  a  sound  construction  of  the  statute  of  limitations.  The 
party  has  in  every  event  twenty  years  to  make  his  entry;  and  if 
under  disability  during  any  part  of  that  time  he  has  ten  years  and 
no  more  after  the  disability  ceases.  It  may  so  happen  that  the 
twenty  years,  and  more,  will  elapse  during  the  disability,  and  then 
ten  years  will  be  afterwards  allowed  cumulatively;  or  the  disability 
may  cease,  so  far  within  the  period  of  the  twenty  years,  as  to  allow 
of  only  twenty  years  in  the  whole,  though  part  of  that  period  be 
covered  by  the  disability.  This  construction  does  not  give  to  per- 
sons laboring  under  disability,  the  same  number  of  years  after  they 
become  of  competent  ability,  as  it  allows  to  other  persons  who  were 
under  no  such  disability.  Such  is  the  policy,  and  the  very  language 
of  the  statute,  for  it  did  not  mean,  as  in  the  case  of  the  limitation 
of  personal  actions,  that  the  party  should,  at  all  events,  have  the  full 
period  of  time  after  the  disability  had  ceased,  because  the  words  of 
the  act  are  explicit,  that  the  extension  of  the  time  of  making  the 
entry  beyond  the  twenty  years,  is  in  no  case  to  exceed  ten  years 
after  the  disability  is  removed.  This  is  also  the  amount  of  the  doc- 
trine contained  in  the  case  of  Doe,  ex.  dem.  George  and  Frances,  his 
wife,  v.  Jesson,  6  East,  80,  for  there  the  whole  period,  from  the 
time  that  the  right  descended  or  accrued,  to  the  time  of  bringing 
the  suit,  was  but  twenty-seven  years,  and  above  eight  of  the  first 
years  of  that  time  had  been  consumed  by  an  acknowledged  disability; 
yet  the  right  of  entry  was  held  to  be  tolled  by  lapse  of  time. 

In  the  case  of  Belch  v.  Harvey,  one  of  the  cases  above  referred  to, 
the  cause  was  ended  by  consent  of  patties,  after  argument,  but  Lord 
Talbot,  who  had  studied  the  case  thoroughly,  then  observed,  that 
if  he  had  made  decree,  his  opinion  would  have  been,  that  after  the 
disability  of  infancy  was  removed,  the  time  fixed  for  prosecuting,  in 
the  proviso,  which  is  ten  years,  should  also  have  been  observed. 
The  proviso,  as  he  said,  contained  an  exception  of  several  cases  out 
of  the  pur  iew  of  the  statute,  and  if  the  parties  at  law  would  avail 
themselves  of  the  proviso,  they  must  take  it  under  such  restrictions 
as  the   Legislature  hath  annexed  to  it,  and  that  is,  to  sue  within  ten 


V.    i.]  STATUTE    OF    LIMITATIONS.  IO49 

years  after  the  impediment  ceases.  Lord  Talbot  also  adds,  "  Why 
should  not  the  same  rule  govern  in  equity?  I  think  that  there  is 
great  reason  that  it  should.  The  persons  who  are  the  subjects  of 
the  proviso  are  not  disabled  from  suing;  they  are  only  excused  from 
the  necessity  of  doing  it  during  the  continuance  of  a  legal  impedi- 
ment; therefore,  when  that  difficulty  is  removed,  the  time  allowed 
for  their  further  proceeding  should  be  shortened.  If  they  would 
excuse  a  neglect  under  the  first  part  of  the  proviso,  should  they  not 
do  it  upon  the  terms  on  which  such  excuse  is  given?  " 

But  another  difficulty  may  be  started  in  this  case;  during  the 
infancy  of  the  plaintiff,  a  second  disability  ensued,  by  means  of  her 
marriage;  and  it  has  been  made  a  question,  whether  a  succession  of 
disabilities,  thus  closing  on  each  other,  can  be  permitted  as  an 
excuse  within  the  statute.  Upon  one  construction  she  would  have 
the  whole  period  of  her  coverture,  and  ten  years  afterwards. 

I  am  clearly  of  opinion,  that  the  party  can  only  avail  himself  of 
the  disabilities  existing  when  the  right  of  action  first  accrued. 

If  several  disabilities  exist  together,  at  the  time  the  right  of  action 
accrues,  the  statute  does  not  begin  to  run  until  the  party  has  sur- 
vived them  all.  1  Plowd.  375.  But  the  case  of  Doc  v.  /esson, 
already  referred  to,  is  an  authority  to  show  that  cumulative  disa- 
bilities cannot  be  allowed.  There  the  disseisin  happened  when  the 
right  owner  was  an  infant,  and  he  died  in  infancy,  leaving  his  infant 
sister  his  heir;  and  the  court  of  K.  B.  held  that  she  was  bound, 
notwithstanding  her  infancy,  to  bring  her  ejectment  within  ten 
years  after  the  death  of  her  brother,  as  more  than  twenty  years  had, 
in  the  whole,  elapsed  since  the  death  of  the  person  last  seised. 

The  policy  of  the  statute  of  limitations  is  to  quiet  possessions,  and 
extinguish  dormant  claims.  There  is  much  wisdom  in  the  general 
provision,  and  though  courts  of  equity  are  not  within  the  letter  of 
those  statutes,  they  have  generally  followed  the  rule,  and  held 
equitable  rights  concluded  by  the  same  bar,  and  subject  to  the  same 
exceptions.  If  there  are  instances  to  the  contrary,  they  are  special 
cases,  as  those  of  direct  trusts,  or  as  that  of  Bond  v.  Hopkins,  1 
Sch.  and  Lef.  413,  where  lapse  of  time  was  attempted  to  be  set  up 
manifestly  against  conscience,  or  where  there  is  fraud  in  the  transac- 
tion. 1  Johns.  Ch.  Rep.  594.  If  disability  could  be  added  to  disa- 
bility, claims  might  be  protracted  to  an  indefinite  extent  of  time, 
and  to  the  great  injury  and  oppression  of  the  country.  According 
to  an  expression  of  Lord  Eldon,  "  a  right  might  travel  through 
minorities  for  two  centuries."  It  would  be  impolitic,  as  well  as 
contrary  to  established  rule,  to  depart  from  the  plain  meaning  and 
literal   expression  of  the  proviso  in  the  statute  of  limitations.     We 


IO50  TITLE    BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

cannot  well  misapprehend  the  meaning  of  the  Legislature.  The 
party  bringing  himself  within  the  proviso  must  be,  "at  the  time 
such  right,  or  title,  first  descended,  or  accrued,  within  the  age  of 
twenty-one  years,  feme  covert,  insane  or  imprisoned,"  and  he  must 
bring  his  action  within  ten  years  "  after  such  disability  removed." 

The  case  of  Eager  v.  The  Commonwealth,  4  Tyng's  Mass.  Rep.  182, 
is  another,  and  a  very  weighty  decision  on  this  point.  The  plaintiff 
was  an  infant,  and  before  the  termination  of  her  infancy,  the  disa- 
bility of  coverture  occurred,  but  the  Supreme  Court  of  Massachu- 
setts held,  that  the  latter  disability  not  existing  when  the  right  first 
accrued,  was  not  within  the  proviso,  and  that  the  party  was  bound 
to  have  brought  her  writ  within  the  given  time  after  the  first  disa- 
bility had  ceased.  The  Supreme  Court  of  Connecticut  did,  indeed, 
in  the  case  of  Eaton  v.  Sanford,  2  Day's  Rep.  523,  recognize  a  right 
which  had  floated  through  successive  disabilities,  for  near  sixty 
years.  But  no  reasons  of  the  court  are  assigned  in  the  case,  and 
the  decision  itself  was  afterwards  disregarded,  and  the  question 
treated  as  an  open  one  by  the  Supreme  Court  of  the  same  State, 
under  a  new  organization  of  the  court  in  the  case  of  Bush  v. 
Bradley,  4  Day's  Rep.  29S.  In  the  last  case,  there  was  no  decision 
upon  the  point,  but  I  may  refer  to  the  opinion  of  one  of  the  judges 
(Mr.  Justice  Smith),  vindicating  the  construction  given  in  6  East, 
by  a  plain  and  unanswerable  argument. 

The  construction  which  excludes  from  the  benefit  of  the  proviso, 
in  all  our  statutes  of  limitations,  successive  or  cumulative  disabili- 
ties, is  within  the  reason  and  spirit  of  the  decision  in  the  celebrated 
case  of  Stowel  v.  Zouch,  Plowd.  353.  The  principle  of  that  case 
decidedly  governs  this  question,  and  for  the  purpose  of  showing 
this,  it  mav  not  be  amiss  to  give  a  short  review  of  it. 

Stowel  being  seised  in  fee  of  certain  lands,  was  disseised  by  Zouch, 
who  levied  a  fine  with  proclamations.  Three  years  afterwards, 
Stowel  died,  without  entry  or  claim  to  avoid  the  fine,  leaving  his 
heir-at-law,  an  infant  of  the  age  of  six  years.  The  infant  made  no 
<  I  urn  during  his  minority,  but  entered  within  one  year  after  he  came 
ol  i  ,<  .  It  was  determined,  by  a  great  majority  of  the  judges,  in  the 
lequer  chamber,  after  several  solemn  arguments  (for  the  case  was 
argued  I  wice  in  ili<-  ( '.  B.  and  twice  in  the  exchequer  chamber,  before 
all  1  Ik;  judges  of  England),  that  the  demandant  was  barred,  by 
reason  <>f  not  making  his  claim  before  the  expiration  of  the  five 
years,  which  had  begun  to  run  in  the  time  of  his  ancestor,  and 
red  in  the  time  ol  his  infancy.  No  point  was,  perhaps,  ever 
more  fully,  ably,  ami  profoundly  argued.  The  discussion  was  aided 
by  illustrations  drawn  from  reason,  convenience,  policy,  precedents, 


V.  i.]  STATUTE   OF   LIMITATIONS.  1051 

and  the  principles  of  the  common  law;  in  short,  it  was  adorned  by 
all  the  learning  and  eloquence  of  Westminster  Hall.  The  argument 
and  decision  established  the  doctrine,  that  the  exceptions  in  the 
statute  of  fines  of  4  Hen.  VII.,  in  favor  of  infants  and  others, 
extended  only  to  such  infants,  etc.,  to  whom  the  right  accrued,  or 
who  actually  possessed  a  right  when  the  fine  was  levied,  and  that  no 
such  right  had  at  that  time  descended,  or  accrued  to  the  demandant, 
for  his  ancestor  was  then  alive;  that  the  circumstance  of  the  demand- 
ant being  an  infant  when  his  ancestor  died,  was  of  no  avail,  because 
the  exception  in  the  statute  gave  the  excuse  of  infancy  to  those  only 
to  whom  a  right  first  accrued,  or  who  had  a  right  at  the  time  of  the 
fine  levied,  and,  therefore  the  plea  of  infancy  did  not  apply  to  the 
case;  that  no  new  right  accrued  after  the  fine  was  levied,  as 
the  demandant's  title  was  as  heir  to  his  ancestor,  in  whom  the  right 
attached  when  the  fine  was  levied;  that  public  tranquillity  was  more 
to  be  favored  than  the  nonage  of  an  infant,  and  that  if  infancy, 
closing  on  infancy,  was  to  be  allowed  in  succession,  "  the  matter 
might  possibly  be  delayed  many  hundred  years;  "  that  the  statute 
intended  to  limit  a  certain  time  for  the  first  right,  and  which  was 
not  to  be  exceeded  by  exposition  or  equity,  though  particular  per- 
sons might  suffer  by  it;  "  that  the  public  repose  was  more  to  be 
regarded  than  the  private  convenience  of  any  particular  person, 
whether  he  be  an  infant,  or  of  unsound  mind,  or  in  other  degree;  " 
that  if  a  disability  terminates,  and  a  party  within  one  month  there- 
after, becomes  disabled  by  a  new  disability,  as  imprisonment,  unsound 
mind,  etc.,  and  so  continues  all  the  five  years,  or,  if  at  the  end  of 
the  first  month  of  the  five  years,  he  dies,  leaving  an  infant  heir,  the 
statute  continues  to  run,  notwithstanding  the  subsequent  disability. 
The  great  principle  of  this  case,  that  the  disability  within  the  pro- 
viso must  exist  when  the  right  of  entry  accrues,  and  that  a  subse- 
quent disability  is  of  no  account,  was  recognized  and  confirmed  in 
Doe  v.  Jones,  4  Term  Rep.  300.  Lord  Kenyon  said,  that  one  uniform 
construction  of  all  the  statutes  of  limitations  had  prevailed,  down  to 
that  moment,  and  that  "  it  would  be  mischievous  to  refine,  and  to 
make  nice  distinctions  between  the  cases  of  voluntary  and  involun- 
tary disabilities;  (as  one  of  the  counsel,  without  any  sufficient  war- 
rant, had  attempted)  but  in  both  cases,  when  the  disability  is  once 
removed,  the  time  begins  to  run."  It  runs,  said  another  of  the 
judges,  notwithstanding  any  subsequent  disability,  either  voluntary 
or  involuntary.  The  case  of  Doe  v.  Shane,  M.  28,  G.  3  (cited  in  the 
note  to  4  Term  Rep.  306),  is  also  a  very  strong  case  on  this  point. 
The  plaintiff,  against  whom  a  fine  was  set  up  in  bar,  was  of  sound 
mind  when  the  fine  was  levied,  but  he  became  insane  about  two 


IO52  TITLE   BY   ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

years  afterwards,  and  the  question  was,  whether  the  time  continued 
to  run  against  him  while  he  was  in  that  state.  Erskine,  for  the 
plaintiff,  found  the  current  of  authorities  so  strong  against  him,  that 
he  would  not  pretend  to  argue  the  question,  and  the  K.  B.  said  the 
point  was  too  plain  to  be  disputed,  and  the  rule  for  a  nonsuit  was 
made  absolute. 

The  doctrine  of  any  inherent  equity  creating  an  exception  as  to 
any  disability,  where  the  statute  of  limitations  creates  none,  has  been 
long,  and,  I  believe,  uniformly  exploded.  General  words  in  the 
statute  must  receive  a  general  construction,  and  if  there  be  no 
express  exception,  the  court  can  create  none.  It  was  agreed,  with- 
out contradiction,  in  Stowel  v.  Zouch,  Plowd.  369  b,  371  b,  that  the 
general  provision  in  the  statute  of  fines  would  have  barred  infants, 
feme  coverts,  and  the  other  persons  named  in  the  proviso,  equally 
with  persons  under  no  disability,  if  they  had  not  been  named  in  the 
exception  or  saving  clause.  So  in  Dupleix  v.  De  Roven,  2  Vern.  540, 
the  Lord  Keeper  thought  it  very  reasonable  that  the  statute  of  limi- 
tations should  not  run  when  the  debtor  was  beyond  sea,  but  as  there 
was  no  saving  in  the  case,  he  could  not  resist  the  plea  of  the  statute. 
The  same  doctrine  is  declared,  in  explicit  and  impressive  terms,  by 
Sir  Wm.  Grant,  in  Beckford  v.  Wade,  17  Vesey,  87,  and  who  refers 
to  the  opinion  of  Sir  Eardly  Wilmot,  in  Lord  Buckinghamshire  v. 
Drury,  Wilmot's  Opinions,  177,  §  194,  and  to  the  decision  in  the 
common  law  courts  {Hall  v.  Wybourn,  2  Salk.  420;  Aubry  v.  Fortescue, 
10  Mod.  206),  that  though  the  courts  of  justice  be  shut  by  civil  war, 
so  that  no  original  could  be  sued  out,  yet  the  statute  of  limitations 
continued  to  run. 

The  opinion  of  Lord  Redesdale,  in  Hovenden  v.  Annesley,  2  Sch.  & 
Lef.  630,  640,  and  of  Lord  Manners,  in  Medlicott  v.  O' 'Done/,  1  Ball 
and  Beatty,  156,  are  remarkably  elaborate  in  tracing  the  authorities, 
and  in  enforcing  the  duty  of  a  court  of  equity  to  render  entire  obedi- 
ence to  all  the  provisions  of  the  statutes  of  limitations. 

Before  I  leave  this  point,  I  ought  to  notice  the  case  of  Lamar  v. 
Jones,  3  Harris  and  M' Henry's  Rep.  328,  in  which  the  late  Chancel- 
lor Hanson,  of  Maryland,  adopted  the  English  rule,  and  held  that 
the  equity  of  redemption  was  barred  after  twenty  years'  possession 
by  the  mortgagee,  without  interest  paid,  or  an  account,  and  when 
t  lapse  of  time  was  relied  on  in  the  answer,  and  ten  years  had 
expired  after  the  disability  had  ceased.  This  would  have  been  a 
peri  ctly  in  point,  bul  it  was  reversed  on  appeal,  on  the  ground, 
thai  the  Court  of  Chancery  in  England  had  not  adopted  that  [tart  of 
the  tatute  of  limitations  which  allows  only  ten  years  to  infants,  after 
the)  ■  ome  of  age,  to  bring  then- ait  ions,  and  the  Court  of  Appeals 


V.  I.]  STATUTE   OF    LIMITATIONS.  IO53 

considered  what  Lord  Talbot  had  said  in  Belch  v.  Harvey,  as  only  a 
dictum.  But,  I  apprehend,  that  the  opinion  of  Lord  Talbot,  formed 
as  it  was,  after  argument,  and  ready  for  delivery,  has  all  the  weight 
due  to  his  very  enlightened  judgment.  Lord  Camden,  in  Smith  v. 
Clay,  3  Bro.  639,  note,  cites  that  very  case  and  opinion,  to  show  that 
the  statute  of  limitations,  in  all  its  provisions,  had  been  adopted, 
and  become  the  "  settled  "  law  in  equity.  The  case  was  also  cited 
by  the  counsel  in  Lyttou  v.  Lytton,  4  Bro.  C.  C.  458,  and  Lord  Rosslyn 
admits,  that  a  similar  proviso  in  the  statute  of  limitations  of  10  and 
11  W.  III.,  limiting  infants  to  five  years  after  they  become  of  age,  to 
bring  error,  was  to  be  adopted  with  the  provisions  of  that  statute, 
as  applicable  to  the  analogous  case  of  bills  of  review.  This  is  a 
clear  judicial  sanction  to  the  doctrine  of  Lord  Talbot,  and,  there- 
fore, as  well  upon  authority  as  upon  the  reason  and  policy  of  the  rule, 
I  conclude,  that  the  Court  of  Appeals  in  Maryland  was,  in  this 
instance,  mistaken;  and  with  respect  to  the  learned  Chancellor's 
opinion,  notwithstanding  the  reversal,  I  trust  I  may,  without  offense, 
be  permitted  to  say,  Sccvvolce  assentior. 

I  conclude,  accordingly,  that  the  lapse  of  time  is  here  a  bar  to  the 
right  of  redemption.  The  plaintiff  has  not  excused  her  laches,  and 
the  length  of  adverse  possession  being  insisted  on  by  the  answer, 
the  defendant  is  entitled  to  the  benefit  of  it  equally  as  if  it  had  been 
pleaded.      1  Atk.  494. 


2.   Nature  of  the  Title. 
BAKER  v.  OAKWOOD. 

123  New  York,  16.  —  1890. 


Action  to  recover  an  undivided  quarter  of  lands  in  the  possession 
of  the  defendant.  One  Raynor  was  the  owner  in  fee  of  the  entire 
premises  and  placed  a  mortgage  thereon,  and  thereafter  the  title  to 
one-fourth  passed  to  plaintiff's  father,  Chas.  B.  Hargin.  After 
Hargin's  death  the  mortgage  was  foreclosed  without  any  notice  to 
his  heirs  or  widow,  and  Mrs.  Raynor  got  title  under  the  mortgage 
sale  and  conveyed  to  defendant.  Further  facts  appear  in  the  opinion. 
Judgment  for  defendants.      Plaintiffs  appeal. 

O'Brien,  J.  — The  findings  of  the  court  below  are  to  the  effect 
that,  upon  the  death  of  Charles  B.  Hargin  in  1840,  the  undivided 
quarter  of  the  lands  in  question  descended  to  his  three  children,  of 
whom  the  plaintiff  is  one,  subject  to  the  widow's  dower.  By  the 
subsequent  death  of  two  of  the  children,  without  issue  and  intestate, 


1054  TITLE   BY   ORIGINAL   ACQUISITION.     [PT.  VI.  GIL  I. 

the  estate  which  the  ancestor  had  at  the  time  of  his  death  became 
vested  in  the  plaintiff  as  the  surviving  child,  subject  to  a  life  estate 
in  two  of  these  shares  in  the  widow.  But  it  is  also  found  that  since 
1849,  when  Lucy  Maria  Raynor  purchased  the  whole  farm  from 
Hovey,  and  went  into  possession,  the  whole  premises  have  been 
held  adversely,  first  by  Mrs.  Raynor  under  her  deed,  and  since  1859 
by  the  defendant  under  its  conveyance  from  Mrs.  Raynor.  The 
heirs  of  Hargin  became  tenants  in  common  with  the  other  owners, 
and  the  finding  of  adverse  possession  implies  that  the  possession  of 
Mrs  Raynor  was  such  as  to  amount  to  an  ouster  of  her  co-tenants. 
Whatever  may  be  said  in  regard  to  the  nature  of  Mrs.  Raynor's  pos- 
session, whether  hostile  or  not,  there  can  be  no  doubt  that  the  pos- 
session of  the  defendant  from  the  time  that  it  purchased  the  land  in 
1859  to  the  time  of  the  commencement  of  this  action  was  of  such  a 
character  as  to  justify  the  conclusion  that  it  commenced  in  an  ouster 
of  the  heirs.  It  was  the  case  of  the  purchase  by  a  public  corpora- 
tion, organized  in  perpetuity,  of  lands  to  be  devoted  to  the  burial  of 
the  dead,  followed  by  enclosing,  improving  and  laying  out  the  land 
in  such  manner  and  devoting  it  to  such  use  as  was  utterly  incon- 
sistent with  every  other  claim  of  title,  and  this  was  a  termination  of 
the  joint  tenancy,  if  it  was  not  terminated  before.  Zapp  v.  Miller, 
109  N.  Y.  51 ;  Millard  v.  McMullin,  68  Id. 345  ;  Florence  v.  Hopkins,  46 
Id.  182.  The  effect  of  this  adverse  possession  upon  the  life-estate 
of  Mrs.  Hargin  is  the  most  important  question  in  this  case.  The 
courts  below  have  held  that  its  effect  was  not  only  to  cut  off  her 
remedy  for  its  recovery,  but  to  extinguish  the  estate  itself  and  vest 
it  in  the  defendant.  If  the  contention  be  correct  that  the  defend- 
ant in  virtue  of  its  adverse  possession  took  to  itself  the  life  estate, 
then  Mrs.  Hargin,  when  she  executed  to  the  plaintiff  the  deed  of 
October,  1885,  had  nothing  to  convey  and  that  deed  was  ineffectual. 
The  learned  counsel  for  the  plaintiff,  perceiving  the  importance  of 
this  point,  has  addressed  himself  to  its  solution  with  most  commend- 
able learning  and  industry.  Perhaps  the  highest  praise  that  can  be 
awarded  to  his  argument  is  to  record  the  fact  that  it  drew  from  his 
distinguished  adversary  a  generous  but  well-deserved  compliment  at 
the  bar.  We  cannot,  however,  assent  to  the  proposition  that  adverse 
ion  of  land  for  a  period  sufficient  to  bar  an  action  merely  cuts 
off  the  owner's  remedy  without  affecting  the  estate.  While  this 
principle  is  not  without  the  sanction  of  judicial  authority,  and  that 
of  text-writers,  we  think  that  the  tendency  of  modern  decisions  in 
this  and  most  of  the  States,  as  well  as  in  the  federal  tribunals,  is 
nsl  it.  It  was  held  that  the  effect  of  the  English  Statute  of 
Limitations,  21   Jai  .  1,  chap.  i(>,  was  to  bar  the  remedy,  but  not  to 


V.  2.]  STATUTE   OF   LIMITATIONS.  IO55 

divest  the  estate.  Davenport  v.  Tyrrel,  1  Wm.  Black,  679;  Beckford 
v.  Wade,  17  Ves.  87;  Scott  v.  Nixon,  3  Dru.  &  War.  388,  403;  Incor- 
porated Soc.  v.  Richards,  1  Id.  258,  289;  Trustees  of  Dundee  Harbor 
v.  Dougall,  1  Macq.  H.  L.  Cas.  317;  Digley's  Hist.  Real  Prop.  159; 
3  Cruise  on  Real  Prop.  430.  But  the  construction  placed  by  the 
English  courts  upon  that  statute  was  not  acceptable  to  a  more  liberal 
and  enlightened  age.  The  commission  of  1828  appointed  to  reform 
the  anomalies  and  abuses  of  the  law  reported,  and  parliament  enacted 
a  new  statute  in  respect  to  the  possession  of  land  (3  and  4  Wm.  IV., 
chap.  27),  the  thirty-fourth  section  of  which  not  only  barred  the 
remedy  in  case  of  adverse  possession,  but  in  terms  extinguished  the 
estate.  Angell  on  Lim.  chap.  2,  10;  App.  (5th  ed.)  15.  Since 
the  passage  of  this  statute  it  is  held  that  adverse  possession  for  a 
period  sufficient  to  bar  the  action  divests  the  estate  of  the  true  owner, 
and  transfers  it  to  the  party  holding  adversely.  49  Hun,  420,  and 
cases  there  cited. 

But  the  doctrine  of  the  English  courts,  giving  construction  to  the 
Statute  of  James,  does  not  seem  to  have  been  followed  in  this  State. 
It  is  true  that  Judge  Cowen,  in  the  course  of  a  long  and  able  opinion 
in  the  case  of  Humbert  v.  Trinity  Church,  24  Wend.  587,  remarked 
that  it  was  of  the  nature  of  the  statute  of  limitations,  when  applied 
to  civil  actions,  "  to  mature  a  wrong  into  a  right  by  cutting  off  the 
remedy;  "  and,  again,  when  speaking  of  actions  brought  by  the  true 
owner  after  the  bar  of  the  statute,  "  his  title  remains,  but  he  has 
lost  his  remedy."  The  question  in  that  case  was  whether  the  long- 
continued  adverse  possession  of  the  defendant  barred  the  plaintiff's 
action,  and  it  was  held  rightly  that  it  did  The  effect  of  an  adverse 
possession  as  a  means  of  acquiring  title  was  not,  however,  involved 
in  the  case.  The  doctrine  that  a  statute  of  limitations  merely 
extinguishes  the  remedy  has  been  frequently  applied  to  contract 
obligations.  As  thus  applied,  the  principle  cannot  be  disputed. 
Time  may  bar  an  action  upon  the  promise  or  contract,  but  it  does 
not  pay  the  debt.  That  remains  as  a  moral  obligation  at  least,  and 
is  a  good  consideration  for  a  new  promise.  Adverse  possession  of 
tangible  property  implies  not  only  the  lapse  of  time,  but  the  occu- 
pation and  enjoyment  by  the  possessor,  and  the  acquiescence  of  the 
true  owner  in  a  hostile  claim  of  title.  The  idea  that  the  title  to 
property  can  survive  the  loss  of  every  remedy  known  to  the  law  for 
reducing  it  to  possession  and  enjoyment  would  seem  to  have  but 
small  support  in  logic  or  reason.  Enactments  which  are  appropri- 
ately termed  statutes  of  repose  when  applied  to  the  adverse  pos- 
session of  land,  have,  as  it  seems  to  us,  a  broader  and  deeper  effect 
than  simply  to  destroy  the  remedy  of  the  true  owner  for  its  recovery. 


IO56  TITLE   BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

One  of  the  earliest  cases  in  this  State  upon  the  question  is  Jack- 
son v.  Dieffendorf,  3  Johns.  269,  decided  nearly  a  quarter  of  a 
century  before  the  change  made  in  the  English  Statute,  21  Jac.  1, 
chap.  16.  In  that  case  a  party  who  could  show  no  other  title  to 
land  than  an  adverse  occupation  for  thirty-eight  years,  was  at  the 
end  of  that  period  put  out  of  possession  by  another,  who  had  the 
paper  title,  under  a  judgment  in  ejectment  obtained  by  default,  and 
the  party  recovering  the  judgment,  and  in  whose  deed  the  premises 
were  included,  went  into  possession.  The  dispossessed  party  then 
brought  another  action  of  ejectment  against  the  person  who  had 
turned  him  out,  and  who  had  a  deed  of  the  land,  for  the  purpose  of 
repossessing  himself  of  what  he  had  lost.  The  court  held  that  he 
was  entitled  to  recover  upon  the  ground  that  the  adverse  possession 
was  conclusive  evidence  of  his  title.  The  doctrine  of  that  case  on 
this  point  has  never  been  disturbed,  and  the  case  itself  has  fre- 
quently been  cited  with  approval  in  this  court.  Baldwin  v.  Brown, 
16  X.  Y.  364;  Reed\T.  Farr,  35  Id.  117. 

The  case  of  Cahill  v.  Palmer,  45  N.  Y.  478,  was  an  action  to 
recover  money  paid  to  the  defendant  for  certain  lands  taken  for 
Central  Park.  Both  parties  claimed  to  own  the  land  for  which  the 
money  was  paid  by  the  city.  A  statute  provided  that  when  the 
money  was  paid  to  the  wrong  person  the  real  owner  of  the  land 
might  bring  and  maintain  an  action  to  recover  it  from  the  party  to 
whom  paid.  The  plaintiff  had  the  paper  title  to  the  land,  and  the 
defendant,  to  whom  the  money  was  paid,  showed  an  adverse  posses- 
sion for  more  than  twenty  years  prior  to  the  time  the  land  was  taken 
by  the  city.  This  court  held  that  the  money  was  properly  paid  to 
the  defendant  and  that  the  plaintiff  could  not  recover.  Grover,  J., 
referring  to  the  point  now  under  consideration,  said:  "  The  counsel 
for  the  appellant  insists  that  an  adverse  possession,  although  for  the 
length  of  time  required  by  statute  to  bar  the  owner,  is  available  only 
as  a  defense  to  a  suit  brought  by  such  owner  for  the  recovery  of  the 
land.  In  this  the  counsel  is  in  error.  When  the  possession  is  actual, 
exclusive,  open  and  notorious,  under  a  claim  of  title  adverse  to  any 
and  all  other  for  the  time  prescribed  by  statute,  such  possession 
iblishes  title.  To  uphold  it,  a  grant  from  the  true  owner  to  such 
party  may  be  presumed."  In  Reformed  Church  v.  Schoolcraft,  65  N. 
Y.  134,  it  was  held  that  adverse  possession  for  the  period  prescribed 
by  the  Statute  to  bar  an  action  was  sufficient  proof  of  title  upon 
which  to  maintain  an  action  of  ejectment  against  parties  in  pos- 
session  without  title.  The  policy  upon  which  the  Statute  <<f  Limita- 
tion 1  ied  when  applied  (o  real  property  was  examined  and  the 
lusion  reai  tied  in    that  ease  that  the  real  owner's  title  is  lost  by 


V.  2.]  STATUTE    OF    LIMITATIONS.  IO57 

acquiescence  in  adverse  possession  by  another,  and  that  the  title  lost 
is  gained  by  the  party  in  possession. 

In  Barnes  v.  Light,  116  N.  Y.  34,  it  was  held  that  an  action  of 
ejectment,  founded  upon  adverse  possession  alone,  may  be  main- 
tained by  the  party  in  whose  favor  the  adverse  possession  has  run, 
even  against  the  true  owner.  This  case  was  decided  mainly  upon 
the  authority  of  Sherrhan  v.  Kane,  86  N.  Y.  58;  Carhton  v.  Darcy,  90 
Id.  566;  Mayor,  etc.  v.  Carleton,  113  Id.  284,  in  all  of  which  the  prin- 
ciple is  recognized  that  title  may  be  obtained  by  adverse  possession 
alone. 

In  Millard  v.  McMullin,  68  N.  Y.  345,  it  is  held  that  such  a  title 
is  sufficient  to  uphold  the  lien  of  an  execution.  A  clear  adverse 
possession  for  twenty  years  constitutes  a  title,  which  a  purchaser  at 
a  judicial  sale  may  not  refuse.  Seymour  v.  DeLancey,  1  Hopk.  Ch. 
436;  Mott  v.  Mott,  68  N.  Y.  246;  Shriver  v.  Shriver,  86  Id.  575; 
O'Connor  v.  Huggins,  113  Id.  511 

The  Supreme  Court  of  the  United  States  has  repeatedly  asserted 
the  recognized  rule  of  the  Roman  law  that  adverse  possession  is  one 
of  the  modes  of  acquiring  title  to  property.  In  Campbell  v.  Holt, 
115  U.  S.  620,  Mr.  Justice  Miller,  delivering  the  opinion  of  the 
court,  said:  "  By  the  long  and  undisturbed  possession  of  tangible 
property,  real  or  personal,  one  may  acquire  a  title  to  it,  or  owner- 
ship, superior  in  law  to  that  of  another,  who  may  be  able  to  prove 
an  antecedent  and,  at  one  time,  paramount  title.  This  superior  or 
antecedent  title  has  been  lost  by  the  laches  of  the  person  holding  it 
in  failing  within  a  reasonable  time  to  assert  it  effectively;  as,  by 
resuming  the  possession  to  which  he  was  entitled,  or  asserting  his 
right  by  suit  in  the  proper  court.  What  the  primary  owner  has  lost 
by  his  laches  the  other  party  has  gained  by  continued  possession, 
without  question  of  his  right.  This  is  the  foundation  of  the  doc- 
trine of  prescription,  a  doctrine  which,  in  the  English  law,  is  mainly 
applied  to  incorporeal  hereditaments,  but  which  in  the  Roman  law, 
and  the  codes  founded  on  it,  is  applied  to  property  of  all  kinds." 
After  pointing  out  the  fact  that  possession  was  the  earliest  mode 
known  to  mankind  for  the  appropriation  of  anything  tangible  to  the 
use  of  one,  and  to  the  exclusion  of  all  others,  and  that  it  was  always 
a  means  of  acquiring  title,  he  adds:  "  The  English  and  American 
Statutes  of  Limitations  have  in  many  cases  the  same  effect,  and  if 
there  is  any  conflict  of  decisions  on  the  subject,  the  weight  of 
authority  is  in  favor  of  the  proposition,  that  where  one  has  had  the 
peaceable,  undisturbed,  open  possession  of  real  or  personal  prop- 
erty, with  an  assertion  of  his  ownership  for  the  period  which,  under 
the  law  would  bar  an  action  for  its  recovery  by  the  real  owner,  the 

LAW    OF    PROP.    IN    LAND  —  67 


IO58  TITLE    BY   ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

former  has  acquired  a  good  title,  a  title  superior  to  that  of  the  lat- 
ter, whose  neglect  to  avail  himself  of  his  legal  rights  has  lost  him 
his  title.  This  doctrine  has  repeatedly  been  asserted  in  this  court. 
Leffingwell  v.  Warren,  2  Black.  599;  Croxall  v.  Shererd,  5  Wall.  268, 
289;  Dicker  son  v.  Colgrove,  100  U.  S.  578,  583;  Bicknell  v.  Comstock, 
113  Id.  149,  152.  It  is  the  doctrine  of  the  English  courts,  and  has 
been  asserted  in  the  highest  courts  of  the  States  of  the  Union." 

The  principle  has  also  the  sanction  of  two  eminent  authors  on  the 
law  of  limitations.  Judge  Cooley,  in  his  recent  work  referring  to 
this  question,  says:  "  When  the  period  prescribed  by  statute  has 
once  run  so  as  to  cut  off  the  remedy  which  one  might  have  had  for 
the  recovery  of  property  in  the  possession  of  another,  the  title  to  the 
property,  irrespective  of  the  original  right,  is  regarded  in  the  law  as 
vested  in  the  possessor,  who  is  entitled  to  the  same  protection  in 
respect  to  it  which  the  owner  is  entitled  to  in  other  cases.  A  sub- 
sequent repeal  of  the  limitation  law  could  not  be  given  a  retroactive 
effect  so  as  to  disturb  this  title.  It  is  vested  as  completely  and  per- 
fectly, and  is  as  safe  from  legislative  interference  as  it  would  have 
been  had  it  been  perfected  in  the  owner  by  grant,  or  by  any  species 
of  assurance."  The  learned  author,  admitting  that  there  is  con- 
troversy in  regard  to  the  point,  has  collected  in  a  note  the  decisions 
of  the  highest  courts  in  several  of  the  States  sustaining  the  doctrines 
stated  in  the  text.     Cooley  on  Const.  Lim.  (5th  ed.)  449. 

In  the  other  treatise  on  this  subject,  which  is  of  highest  authority, 
it  is  said:  "  As  a  general  doctrine,  it  has  too  long  been  established 
to  be  now  in  the  least  degree  controverted  that  what  the  law  deems 
a  perfect  possession,  if  continued  without  interruption  during  the 
whole  period  which  is  prescribed  by  the  statute  for  the  enforcement 
of  the  right  of  entry,  is  evidence  of  a  fee.  Independently  of  posi- 
tive or  statute  law,  the  possession  supposes  an  acquiescence  in  all 
persons  claiming  an  adverse  interest,  and  upon  this  acquiescence  is 
founded  the  presumption  of  the  existence  of  some  substantial 
reason,  though  perhaps  not  known,  for  which  the  claim  of  an  adverse 
interest  was  forborne.  Not  only  every  legal  presumption,  but  every 
consideration  of  public  policy,  requires  that  this  evidence  of  right 
should  be  taken  to  be  very  strong,  if  not  of  conclusive  force." 
Angell  on  Lim.,  chap.  31,  373.  The  same  learned  author  seems  to 
treat  prescription  and  adverse  possession,  so  far  as  this  question  is 
concerned,  as  practically  the  same  thing.     Id.,  chaps,  1,  2. 

These  authorities,  and  others  that  might  be  cited,  show  that  title 
to  an  <statc  in  land  may  be  acquired  by  one  and  lost  by  another  by 
means  of  adverse  possession.  This  principle  has  become  a  rule  of 
property  that  cannot  now  be  disturbed  without  grave  injury  to  titles. 


V.  2.]  STATUTE   OF    LIMITATIONS.  IO59 

There  is  no  serious  claim  that  the  plaintiff  can  recover  the  share 
which  she  took  direct  from  her  father,  and  as  to  the  other  two  shares 
the  plaintiff's  remainders  are  limited  upon  her  mother's  life  estate 
which  the  defendant  has  absorbed  in  its  adverse  possession,  and  is 
not  yet  terminated,  as  under  the  principles  above  stated  she  had 
nothing  to  convey,  and  nothing  passed  to  the  plaintiff  under  the 
deed  of  October,  1885.  Hence,  the  plaintiff's  rights  are  to  be  deter- 
mined in  this  case  in  the  same  way  as  if  the  deed  had  not  been 
executed  at  all.  This  point  is,  we  think,  decisive  of  the  case,  and  it 
is  not  necessary  to  examine  the  questions  so  ably  discussed,  whether 
the  conveyance  offends  against  the  champerty  statutes;  whether 
the  defendant  is  entitled  to  the  rights  of  a  mortgagee  in  possession, 
or  when,  and  under  what  circumstances  a  defendant  in  ejectment  can 
protect  his  possession  by  an  outstanding  title  in  another. 
The  judgment  should  be  affirmed. 


SCHOOL-DISTRICT  No.  4,  in  WINTHROP,  v.  BENSON. 
31  Maine,  381.  —  1850. 

Wells,  J.  — The  jury  were  instructed,  that  if,  in  1847,  the  agent  of 
the  school  district,  at  the  request  of  the  defendants,  removed  said 
wood-house  where  it  now  is,  intending  to  relinquish  and  give  up  the 
land,  and  the  district  had  subsequently  ratified  his  acts  by  their  con- 
duct or  otherwise,  of  which  they  were  the  judges,  then  such  abandon- 
ment, notwithstanding  the  district  might  before  that  time  have  had 
an  open,  adverse,  exclusive  and  notorious  possession  of  the  land,  or 
some  part  of  it,  for  more  than  twenty  years,  would  operate  an 
abandonment  of  their  possession,  and  a  surrender  of  their  claim  to 
the  former  owners  thereof,  and  the  plaintiffs  could  not  recover  the 
said  land  in  this  suit. 

It  is  true  that  a  mere  possession  of  land  of  itself  does  not  neces- 
sarily imply  a  claim  of  right.  The  tenant  may  hold  in  subjection 
to  the  lawful  owner,  not  intending  to  deny  his  right  or  to  assert  a. 
dominion  over  the  fee.  But  the  terms  open,  notorious,  adverse  and 
exclusive,  when  applied  to  the  mode  in  which  one  holds  lands,  must 
be  understood  as  indicating  a  claim  of  right.  They  constitute  an 
appropriate  definition  of  a  disseisin,  and  the  acts  which  they  describe,, 
will  have  that  effect  if  not  controlled  or  explained  by  other  testi- 
mony. Little  v  Libbey,  2  Green].  242;  The  Proprietors  of  Kennebec 
Purchase  v.  John  Springer,  4  Mass.  416.  An  adverse  possession 
entirely  excludes  the  idea  of  a  holding  by  consent. 


IO60  TITLE    BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

If  the  plaintiffs  have  held  the  premises  by  a  continued  disseisin 
for  twenty  years,  the  right  of  entry  by  the  defendants  is  taken  away, 
and  any  action  by  them  to  recover  the  same  is  barred  by  limitation. 
Stat.,  c.  147,  §  1. 

A  legal  title  is  equally  valid  when  once  acquired,  whether  it  be  by 
disseisin  or  by  deed,  it  vests  the  fee  simple,  although  the  modes  of 
proof  when  adduced  to  establish  it  may  differ.  Nor  is  a  judgment 
at  law  necessary  to  perfect  a  title  by  disseisin  any  more  than  one  by 
deed.  In  either  case,  when  the  title  is  in  controversy,  it  is  to  be 
shown  by  legal  proof,  and  a  continued  disseisin  for  twenty  years  is 
as  effectual  for  that  purpose  as  a  deed  duly  executed.  The  title  is 
created  by  the  existence  of  the  facts,  and  not  by  the  exhibition  of 
them  in  evidence. 

An  open,  notorious,  exclusive  and  adverse  possession  for  twenty 
years,  would  operate  to  convey  a  complete  title  to  the  plaintiffs,  as 
much  so  as  any  written  conveyance.  And  such  title  is  not  only  an 
interest  in  the  land,  but  it  is  one  of  the  highest  character,  the  abso- 
lute dominion  over  it,  and  the  appropriate  mode  of  conveying  it  is 
by  deed. 

No  doubt  a  disseisor  may  abandon  the  land,  or  surrender  his  pos- 
session by  parol,  to  the  disseisee,  at  any  time  before  his  disseisin 
has  ripened  into  a  title,  and  thus  put  an  entire  end  to  his  claim. 
His  declarations  are  admissible  in  evidence  to  show  the  character  of 
his  seisin,  whether  he  holds  adversely  or  in  subordination  to  the 
legal  title.  But  the  title,  obtained  by  a  disseisin  so  long  continued 
as  to  take  away  the  right  of  entry,  and  bar  an  action  for  the  land 
by  limitation,  cannot  be  conveyed  by  a  parol  abandonment  or 
relinquishment,  it  must  be  transferred  by  deed.  One  having  such 
title  may  go  out  of  possession,  declaring  he  abandons  it  to  the 
former  owner,  and  intending  never  again  to  make  any  claim  to  the 
land,  and  so  may  the  person  who  holds  an  undisputed  title  by  deed; 
but  the  law  does  not  preclude  them  from  reclaiming  what  they  have 
abandoned  in  a  manner  not  legally  binding  upon  them.  A  parol 
conveyance  of  lands  creates  nothing  more  than  an  estate  or  lease  at 
will.     Stat.,  c.  91,   §  30. 

The  exceptions  are  sustained,  and  a  new  trial  granted. 


VI.  i.]  TITLE    BY    ESTOPPEL.  Io6l 

VI.  Title  by  estoppel. 

1.   Estoppel  in  Deed. 
PIKE  v.  GALVIN. 

29  Maine,  183.  —  1S4S. 

Shepley,  J.  —  The  title  of  both  parties  to  the  demanded  premises 
is  derived  from  Artemas  Ward,  who,  by  his  agent  Robbins,  made  a 
contract  in  writing  on  October  26,  1820,  to  convey  a  tract  of  land 
including  the  premises  to  Theodore  Jellison  upon  the  performance 
of  certain  conditions  therein  stated.  Jellison  appears  to  have 
entered  into  possession,  but  does  not  appear  to  have  performed  the 
conditions.  On  July  7,  1823,  Jellison  assigned  that  contract  to  the 
demandant,  and  on  the  same  day  made  a  deed  of  release  purporting 
to  convey  the  same  tract  of  land  to  the  demandant.  Artemas  Ward, 
on  October  27,  1825,  by  a  deed  containing  covenants  of  warranty, 
conveyed  a  larger  tract  of  land  including  the  tract  before  named,  to 
Jones  Dyer,  Jr.,  who,  on  July  11,  1829,  conveyed  to  Theodore  Jel- 
lison the  tract  of  land  described  in  his  deed  to  the  demandant. 
Jellison,  on  May  9,  1833,  conveyed  the  premises  demanded  to 
Stephen  Emerson.  These  conveyances  were  all  duly  recorded.  The 
defendant  is  the  tenant  of  Joseph  Wyeth  and  Stephen  G.  Bass,  who 
have  exhibited  a  title  derived  from  Stephen  Emerson.  The 
demandant  has  never  been  in  possession  of  the  land  described  in  his 
deed  from  Jellison,  but  Jellison  and  those  claiming  title  from  Ward 
through  Jellison  have  always  been  in  possession. 

As  Jellison  had  no  title  when  he  made  his  deed  on  July  7,  1823, 
the  demandant  can  have  none,  unless  that  acquired  by  Jellison  on 
July  11,  1829,  inured  to  him. 

The  deed  from  Jellison  to  the  demandant  contains  no  covenants 
but  the  following:  "  So  that  neither  I,  the  said  Jellison,  nor  my 
heirs  or  any  other  person  or  persons  claiming  from  or  under  me  or 
them,  or  in  the  name,  right  or  stead  of  me  or  them,  shall  or  will,  by 
any  way  or  means,  have,  claim  or  demand  any  right  or  title  to  the 
aforesaid  premises  or  to  any  part  or  parcel  thereof  forever." 

Without  entering  upon  a  discussion  of  the  doctrine  or  the  different 
aspects  of  it  presented  in  the  very  numerous  cases  which  have  been 
decided  respecting  the  effect  of  covenants  contained  in  a  convey- 
ance of  land  to  transfer  to  the  vendee  by  inurement,  estoppel,  or 
otherwise,  a  title  subsequently  acquired,  it  will  be  sufficient  for  the 
present  purpose  to  state  a  couple  of  positions  which  appear  to  have 
been  asserted  or  admitted  in  many  of  them. 


1062  TITLE    BY   ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

i.  When  one  has  made  a  conveyance  of  land  by  a  deed  contain- 
ing a  covenant  of  warranty,  a  title  subsequently  acquired  will  be 
transferred  to  the  vendee,  or  the  vendor  and  those  claiming  under 
him  will  be  estopped  to  deny  it.  Such  is  the  doctrine  in  this  State. 
White  v.  Erskine,  i  Fairf.  306;  Lawry  v.  Williams,  13  Maine  R.  281; 
Baxter  v.  Bradbury,  20  Maine  R.  260.  In  New  Hampshire,  Kimball 
v.  Blaisdell,  5  N.  H.  R.  533.  In  Vermont,  Middlebury  College  v. 
Cheney,  1  Vermont  R.  336.  In  Massachusetts,  Somes  v.  Skinner,  3 
Pick.  52;  White  v.  Patten,  24  Pick.  324.  In  New  York,  Jackson  v. 
Matsdorf,  n  Johns.  R  91;  Jackson  v.  Bradford,  4  Wend.  619;  Pel- 
letreau  v.  Jackson,  11  Wend.  no.  In  Ohio,  Hill  v.  West,  8  Ham. 
222.  In  the  courts  of  the  United  States,  Terrett  v.  Taylor,  9 
Cranch,  53;  Mason  v.  Muncaster,  9  Wheat.  455;  Stoddard  v.  Gibbs, 
1  Sum.  263. 

Against  these  and  other  decisions  to  the  same  effect,  it  has  been 
contended,  that  "  the  old  common-law  warranty  has  no  practical 
operation  under  the  system  of  conveyancing  employed  in  this  coun- 
try, except  in  the  single  case  of  release  with  warranty  to  a  party  in 
adverse  seisin  of  an  estate,  and  of  a  subsequent  descent  of  the  right 
of  entry  or  action  to  the  warrantor."  And  that  "  the  doctrine  of 
estoppel  in  deeds  cannot  be  based  upon  that  of  warranty."  Doe  v. 
Oliver,  Smith's  L.  C.  460,  in  note.  If  the  question  could  be  consid- 
ered as  open  to  discussion,  it  might  be  worthy  of  deliberate  consid- 
eration.    But  it  would  seem  to  be  too  late  to  entertain  it. 

2.  Where  one  has  made  a  conveyance  of  land  by  deed  containing 
no  covenant  of  warranty,  an  after-acquired  title  will  not  inure  or  be 
transferred  to  the  vendee;  nor  will  the  vendor  be  estopped  to  set  up 
his  title  subsequently  acquired,  unless  by  doing  so  he  be  obliged  to 
deny  or  contradict  some  fact  alleged  in  his  former  conveyance. 

There  is  an  irreconcilable  difference  in  the  decided  cases  respect- 
ing this  proposition.  It  is  believed,  however,  to  be  fully  established 
by  the  better-considered  opinions,  and  to  be  in  accordance  with  well 
established  principles. 

It  is  sustained  in  this  State  by  the  cases  of  Allen  v.  Sayward,  5 
Greenl.  227,  and  //am  v.  Ham,  14  Maine  R.  351;  and  opposed  by 
the  1  ase  of  Fairbanks  v.  Williamson,  7  Greenl.  96.  In  New  Hamp- 
shire it  is  sustained  by  the  case  of  Kimball  v.  Blaidsdell,  5  N.  H.  R. 
533.  In  Massachusetts  it  is  sustained  by  the  cases  of  Somes  v. 
Skinner,  3  Pick.  61 ;  Blanchard  v.  Brooks,  12  Pick.  47;  Comstock  v. 
Smith,  13  Pick.  116;  and  opposed  by  the  case  of  Trull  v.  Eastman,  3 
Mete.  [2i.  In  Connecticut  it  is  sustained  by  the  case  of  Darts. 
I hni.  7  Conn.  R.  250.  In  New  York  it  is  sustained  by  the  cases  of 
Jackson  v.  Wright,  14  Johns.  R.  193;  Jackson  v.  Bradford,  4  Wend. 


VI.  i  ]  TITLE    BY    ESTOPPEL.  IO63 

619;  Pelletreau  v.  Jackson,  11  Wend,  no;  Jackson  v.  Waldron,  13 
Wend.  178.  And  it  may  be  considered  as  opposed  by  the  cases  of 
Jackson  v.  Bull,  1  Johns.  Cas.  81,  and  Jackson  v.  Murray,  12  Johns. 
R.  201.  If  they  be  so  considered,  they  were  overruled  by  the  case 
of  Pelletreau  v.  Jackson.  In  Ohio  it  is  sustained  by  the  case  of 
Kinsman  v.  Loomis,  n  Ohio,  475. 

The  only  suitable  inquiry  to  be  entertained  in  this  State  is, 
whether  our  own  case  of  Fairbanks  v.  Williamson,  although  the  doc- 
trine asserted  in  it  may  have  been  approved  elsewhere,  as  well  as  in 
the  case  of  White  v.  Erskine,  can,  upon  sound  principles,  be  sus- 
tained. The  deed  in  that  case,  contained  no  covenant  but  that  of 
non-claim.  The  ground,  upon  which  it  was  decided  that  a  title  sub- 
sequently acquired  inured  to  the  vendee  appears  to  have  been  that 
the  covenant  of  non-claim  was  "a  covenant  real,  which  runs  with 
the  land  and  estops  the  grantor  and  his  heirs  to  make  claim,  or  set 
up  any  title  thereto." 

Covenants  which  relate  to  the  land,  are  said  to  run  with  the  land. 
Sale  v.  Kitchingam,  10  Mod.  158;  Norman  v.  Wells,  17  Wend.  136. 
But  a  covenant,  which  may  run  with  the  land,  can  do  so  only  when 
the  land  is  conveyed.  It  can  only  run,  when  attached  to  the  land, 
as  its  vehicle  of  conveyance.  Spencer's  Case,  5  Coke,  17  b;  Lucy  v. 
Levingston,  2  Lev.  26;  Lewes  v.  Ridge,  Cro.  Eliz.  863;  Bickford  v. 
Page,  2  Mass.  460;  Slater  v.  Rawson,  1  Mete.  456;  White  v.  Whitney, 
3  Mete.  81;  Clark  v.  Swift,  3  Mete.  390;  Chase  v.  Weston,  12  N.  H. 
413;  Garfield  \.  Williams,  2  Verm.  327;  Beardsley  v.  Knight,  4  Verm. 
471;  Mitchell  s.Warner,  5  Conn.  497;  Kane  v.  Sanger,  14  Johns.  89; 
Beddoev.  Wadsworth,  21  Wend.  120;  Garrison  v.  Sandford,  7  Halst. 
261;  Randolph  v.  Kinney,  3  Rand.  394;  Backus  v.  McCoy,  3  Ham. 
211;  Aliens.  Wooley,  1  Blackf.  149.  The  cases  of  Kingdon  v.  Nottle, 
1  M.  &  S.  353,  and  4  M.  &  S.  53,  are  denied  to  have  been  correctly 
decided  in  Mitchell  v.  Warner,  5  Conn.  497,  and  in  Clark  v.  Swift,  3 
Mete.  390.  Kent,  also,  in  speaking  of  covenants  which  run  with 
the  land,  says:  "They  cannot  be  separated  from  the  land  and 
transferred  without  it,  but  they  go  with  the  land,  as  being  annexed 
to  the  estate."     4  Kent's  Com.  472,  note  b. 

Admitting  the  covenant  in  the  deed  alluded  to  in  Fairbanks  v. 
Williamson,  to  be  a  covenant  that  might  run  with  the  land,  it  could 
not  run  or  be  transferred  by  law  to  the  assignee  of  the  grantee,  so 
as  to  enable  him  to  derive  any  benefit  from  it.  Nor  could  it  operate 
in  his  favor  by  way  of  estoppel  to  prevent  circuity  of  action,  for  he 
could  maintain  no  action  on  that  covenant.  Nor  could  it  so  operate 
in  any  other  mode,  unless  there  had  been  found  some  allegation  in 
the  deed  by  which  the  releasor  had  asserted  some  matter  to  be  true, 


1064  TITLE   BY    ORIGINAL   ACQUISITION.     [PT.  VI.  CH.  I. 

which  he  must  necessarily  contradict,  and  deny  to  have  been  true, 
if  he  would  claim  to  be  the  owner  of  the  land.  In  such  case  he 
would  have  been  estopped,  because  the  law  will  not  permit  one  who 
has  in  such  a  solemn  manner  admitted  a  matter  to  be  true,  to  allege 
it  to  be  false.  "  This,"  says  Kent,  "  is  the  reason  and  foundation 
of  the  doctrine  of  estoppels."  4  Kent's  Com.  261,  note  d. ;  where 
he  also  says,  "  A  release  or  other  deed,  when  the  releasor  or  grantor 
has  no  right  at  the  time,  passes  nothing,  and  will  not  carry  a  title 
subsequently  acquired,  unless  it  contains  a  clause  of  warranty;  and 
then  it  operates  by  way  of  estoppel,  and  not  otherwise."  The  cove- 
nant of  non-claim  asserts  nothing  respecting  the  past  or  the  pres- 
ent.    It  is  only  an  engagement  respecting  future  conduct. 

One  who  acquires  no  title  by  a  release  without  covenants  respect- 
ing the  title  cannot  recover  back  the  purchase  money  which  he  paid 
for  it.  Emerson  v.  The  County  of  Washington,  9  Greenl.  88.  To  per- 
mit him  to  acquire  a  title  subsequently  purchased  by  his  releasor 
would  often  enable  him  to  obtain  in  another  and  less  direct  mode 
property  of  more  value  than  the  purchase  money. 

The  conclusion  is  that  the  doctrine  asserted  in  the  case  of  Fair- 
banks v.  Williamson  cannot,  upon  sound  principles,  be  admitted,  and 
that  the  decided  cases  in  this  and  other  States  are  opposed  to  it. 

When  Jellison  made  his  deed  of  release  to  the  demandant,  he  was 
in  possession  in  submission  to  the  title  of  Ward,  and  was  but  a  ten- 
ant at  will  to  him.  Not  being  seised  of  a  fee  simple,  he  could  not 
convey  it.  The  demandant  must  have  known,  when  he  received 
that  deed,  that  Jellison  had  no  title  and  could  convey  none,  for  he 
at  the  same  time  took  an  assignment  of  Jellison's  contract  to  pur- 
chase that  land  of  Ward.  He  subsequently  acted  as  an  appraiser  to 
make  a  levy  and  to  pass  the  title  to  a  part  of  that  land  from  a  grantee 
of  Jellison  to  a  creditor  of  that  grantee.  There  is  no  allegation  in 
the  deed  of  Jellison  to  the  demandant  respecting  the  title  which  it 
would  be  necessary  for  Jellison  or  his  grantee  to  deny  or  contradict 
by  setting  up  a  title  subsequently  acquired. 

Demandant  nonsuit. 


2.    Estoppel  tn  r.irs — Equitablf,  Estoppel. 
BLAKESLEE  v.  SINCKPAUGH. 
71  Hun,  412.  —  1893. 
\<  ii'>\-  to  recover  real  estate. 

Mi  iwiN',  J.  —  Upon  the  trial  of  this  action  it  was  shown  on  the 
part  of  the  plaintiff  that  Ilavilla  D.  I'.lakcslee,  by  deeds  dated  Sep- 
tember 25,  1834,  and   September  22,  1838,  became  the  owner  of  a 


VI.  i.]  TITLE   BY    ESTOPPEL.  IO65 

quantity  of  land,  and  thereafter,  by  deed  dated  December  3,  1880, 
and  duly  recorded  December  4,  1880,  he,  with  his  wife,  conveyed 
the  same  to  the  plaintiff,  excepting  sixteen  acres  theretofore 
conveyed  to  the  plaintiff.  The  premises  in  dispute  are  a  part  of 
the  lands  described  in  these  deeds.  The  consideration  of  the 
deed  of  December  3,  1880,  as  stated  in  the  deed  is  the  sum  of 
one  dollar  and  the  maintenance  and  support  of  the  parties  of  the 
first  part  during  their  natural  lives.  It  was  then  shown  on  the  part 
of  the  defendant,  that  Havilla  D.  Blakeslee  and  wife,  by  warranty 
deed  dated  December  1,  1882,  and  recorded  December  5,  1882,  con- 
veyed the  premises  in  dispute  to  the  defendant  for  the  consideration 
therein  named  of  $680,  which  defendant  at  the  time  paid  to  the 
grantor  or  the  person  acting  for  him.  Havilla  D.  Blakeslee  was  the 
grandfather  of  plaintiff,  and  evidence  was  given  tending  to  show 
that  plaintiff  at  this  time  lived  with  his  grandparents,  on  the  farm 
of  which  the  premises  in  question  were  a  part;  that  he  knew  of  the 
negotiations  for  the  purchase  by  defendant  of  the  grandfather;  that 
during  these  negotiations  the  defendant  saw  the  plaintiff,  told  him 
he  was  talking  about  buying  a  piece  of  land  of  his  grandfather,  and 
had  heard  that  he,  the  plaintiff,  had  an  interest  in  it,  and  asked  him 
whether  that  was  so,  and  whether  he  had  any  deed  or  mortgage 
against  it;  and  he,  the  plaintiff,  replied  that  he  had  no  deed  or 
mortgage  against  it,  and  had  no  interest  in  his  grandfather's  prem- 
ises; that  the  plaintiff  at  the  time  knew  that  he  was  the  legal  owner 
of  the  property,  and  made  the  statement  to  defendant  with  intent  to 
deceive  him  and  induce  him  to  buy  of  his  grandfather;  that  the 
defendant  thereupon,  in  reliance  upon  the  truth  of  the  plaintiff's 
statement,  and  in  ignorance  of  the  true  state  of  the  title,  made  the 
purchase  of  the  grandfather. 

The  plaintiff  denied  making  the  representations  or  that  he  knew 
that  his  deed  covered  the  property  conveyed  to  defendant.  It  was 
also  shown  that  plaintiff  was  then  a  minor,  having  been  born  March 
6,  1862. 

At  the  close  of  the  evidence  the  counsel  for  plaintiff  asked  the 
court  to  direct  a  verdict  for  the  plaintiff  upon  several  gounds,  chiefly 
that  the  evidence  upon  the  part  of  the  defendant  was  not  sufficient 
to  constitute  an  estoppel;  that  at  the  time  of  the  alleged  statements 
the  plaintiff  was  an  infant,  and  that  if  he  made  the  statements  he 
did  not  know  at  the  time  whether  or  not  he  owned  the  land,  and  that 
no  fraud  was  shown  upon  his  part,  and  that  the  defendant  was  guilty 
of  negligence  in  not  causing  the  records  to  be  searched.  The  court 
denied  the  motion  and  stated  that  in  its  opinion  the  better  way  to 
dispose  of  the  case  was  to  submit  it  to  the  jury  on  four  questions: 


1066  TITLE    BY    ORIGINAL   ACQUISITION.      [PT.  VI.  CH.  I. 

"  First,  whether  these  statements  were  made  by  the  plaintiff  to  the 
defendant;  second,  whether  the  plaintiff  had  knowledge  at  the  time 
he  made  them  that  he  was  the  legal  owner  of  this  land;  third, 
whether  they  were  made  by  the  plaintiff  with  the  intention  that  they 
should  be  acted  upon  by  the  defendant  in  the  purchase  of  the  land; 
fourth,  whether  they  were  acted  upon,  and  relied  upon  by  the 
defendant  when  the  land  was  purchased  by  him."  The  plaintiff's 
counsel  duly  excepted  to  such  ruling  and  to  the  denial  of  the  motion. 
The  case  was  thereupon  submitted  to  the  jury  upon  the  line  sug- 
gested by  the  court,  and  a  general  verdict  rendered  for  the  defend- 
ant. There  was  no  exception  to  the  charge  and  no  request  that  any 
other  question  should  be  submitted  to  the  jury. 

i.  The  first  proposition  now  presented  by  the  plaintiff  is,  that  the 
plaintiff,  being  an  infant  at  the  time  of  making  the  alleged  state- 
ments, was  not  estopped  thereby. 

Assuming,  as  we  must,  that  the  facts,  so  far  as  warranted  by  the 
evidence,  were  found  against  the  plaintiff,  we  have  here  a  case  of 
intentional  fraud.  In  Spencer  v.  Carr,  45  N.  Y.  406,  where,  as  here, 
it  was  claimed  that  an  infant  was  barred  of  her  title  by  an  equitable 
estoppei,  it  was  held  that  in  the  absence  of  intentional  fraud  upon 
her  part  she  would  not  be  estopped,  and  that  as  that  was  not  found 
she  would  not  be  deprived  of  her  legal  rights.  The  inference  is, 
that  if  there  was  intentional  fraud,  the  doctrine  of  equitable  estoppel 
would  apply  notwithstanding  infancy  The  opinion  of  the  court 
in  the  case  strongly  supports  this  inference,  in  cases  where  the  infants 
are  of  sufficient  age  to  appreciate  their  rights  and  duties.  We  are 
referred  to  no  case  in  this  State  where  the  views  suggested  in  Spencer 
v.  Carr  are  criticised.  In  Brumfield  v.  Boutall,  24  Hun,  457,  the 
question  of  fraud  on  the  part  of  the  infant  was  not  up,  nor  was  it  in 
Sherman  v.  Wright,  49  N.  Y.  231.  The  same  may  be  said  as  to  Ackley 
v.  Dygert,  33  Barb.  176.  In  Brown  v.  McCune,  5  Sandf.  224,  decided 
in  1851,  it  was  held  that  fraudulent  representations  as  to  his  age 
did  not  bind  an  infant.  This  case  was  critcised,  and  the  opposite 
held  in  Eckstein  v.  /''rank,  1  Daly,  334.  In  Green  v.  Green,  69 
N.  Y.  553,  a  father  had  taken  a  deed  from  his  minor  son  and  paid 
him  the  consideration,  and  the  question  was  whether  the  son,  on 
be<  oming  of  age,  could  repudiate  the  deed  without  restoring  the 
consideration.  It  was  held  that  he  could,  it  appearing  that  the 
money  was  spent  and  he  had  no  other  property  with  which  to  replace 
it.     There  was  no  question  of  fraud  in  the  case. 

In  1  Story's  Equity,  ii  385,  it  is  said  in  reference  to  cases  like  the 
pre  •'■nt,  that  "  cases  of  this  sort  are  viewed  with  so  much  disfavor 
by  1  ourtsof  equity,  thai  neither  infancy  nor  1 -overture  will  constitute 


VI.   I.]  TITLE    BY    ESTOPPEL.  I067 

any  excuse  for  the  party  guilty  of  the  concealment  or  misrepresenta- 
tion; for  neither  infants  nor  femes  covert  are  privileged  to  practice 
deceptions  or  cheats  on  other  innocent  persons."  In  2  Sugden  on 
Vendors  (8th  Am.  ed.),  507,  chap.  23,  §  1,  pi.  17,  it  is  said:  "  If  a 
person  having  a  right  to  an  estate  permit  or  encourage  a  purchaser 
to  buy  it  of  another,  the  purchaser  shall  hold  it  against  the  person 
who  has  the  right,  although  covert,  or  under  age."  In  2  Pomeroy's 
Equity,  §  815,  it  is  said:  "  An  equitable  estoppel  arising  from  his, 
the  infant's  conduct  may  be  interposed,  with  the  same  effect  as 
though  he  were  adult,  to  prevent  him  from  affirmatively  asserting  a 
right  of  property  or  of  contract  in  contravention  of  his  conduct 
upon  which  the  other  party  has  relied  and  been  induced  to  act." 
Numerous  cases  are  cited  to  each  of  the  quoted  propositions.  The 
same  rule  is  stated  in  Bigelow  on  Estoppel,  448.  See,  also,  note  in 
44  Am.  Dec.  386;  Bispham's  Eq.  §  293.  There  is  no  doubt  in  the 
present  case  that  the  infant  was  of  sufficient  age  to  appreciate  his 
rights  and  duties.  He  lacked  only  a  few  months  of  being  of  age. 
The  rule  to  be  inferred  from  the  Spencer  Case,  as  to  the  application 
of  the  doctrine  of  equitable  estoppel  to  infants,  while  it  may  not  be 
entirely  consistent  with  the  supposed  disability  and  need  of  protec- 
tion of  infants,  has,  I  think,  the  weight  of  authority  in  its  favor,  and 
it  should  be  followed  by  us  in  this  case.  The  court  below,  therefore, 
properly  held  that  the  fact  that  plaintiff  was  an  infant  did  not  of 
itself  relieve  him. 

2.  The  plaintiff  further  claims  that  he  should  not  be  estopped 
because  he  had  no  knowledge  that  he  owned  the  land  in  dispute. 
This,  however,  upon  the  evidence  was  a  question  of  fact  and  was 
found  adversely  to  plaintiff. 

3.  It  is  further  claimed  that  the  burden  of  proof  is  on  the  defend- 
ant, and  that  the  testimony  being  evenly  balanced  defendant  must 
fail.  It  is  true  that  the  burden  of  proof  was  on  the  defendant,  and 
that  statements  testified  to  by  the  defendant  were  denied  by  the 
plaintiff.  It  was,  however,  for  the  jury  to  determine  where  the 
truth  was,  and  there  were  many  surrounding  circumstances  that  bore 
upon  the  question. 

4.  It  is  further  claimed  that  the  defendant  was  guilty  of  laches  in 
neglecting  to  consult  the  records  in  the  clerk's  office,  and  the  case  of 
Trenton  Banking  Co.  v.  Duncan,  86  N.  Y.  221,  is  cited  in  support 
of  the  proposition.  In  that  case  the  plaintiff,  who  sought  the  benefit 
of  an  estoppel,  neither  looked  at  the  record  nor  made  any  inquiry  of 
anybody  as  to  the  ownership  of  the  property,  and  it  was  held  that  it 
failure  to  examine  the  record  and  make  inquiry  prevented  its 
recovery.     The   present  case  is  materially  different.     So  in  McCul- 


I068  TITLE   BY   ORIGINAL  ACQUISITION.     [l'T.  VI.  CH.  I. 

loch  v.  Wellington,  21  Hun,  5,  there  were  no  representations  by  the 
owner,  but,  as  said  in  the  opinion  at  page  14,  it  was  the  case  of  a 
purchaser  who,  from  his  confidence  in  the  vendor,  or  from  other  cir- 
cumstances, not  imputable  to  the  claimant,  has  purchased  property 
and  omitted  to  make  the  necessary  and  ordinary  examination  of  title. 
In  Lyon  v.  Morgan,  19  N.  Y.  Supp.  201,  the  effect  of  failure  to 
examine  the  record  was  not  determined,  and  the  case  was  decided 
upon  other  grounds. 

If  the  present  case  was  one  where  the  owner  was  simply  silent,  it 
may  be  that  the  constructive  notice  from  the  record  would  prevent 
the  defendant  from  receiving  any  benefit  from  the  doctrine  of 
estoppel.  But  assuming  that  there  were  false  representations  and 
intentional  fraud,  the  rule  would  be  different.  Brinckerhoff  v.  Lan- 
sing, 4  Johns.  Ch.  65;  Fisher  v.  Mossman,  11  Ohio  St.  47.  As  said 
by  Judge  Strong  in  Hill  v.  Eplcy,  31  Penn.  St.  334:  "  It  should 
never  be  forgotten  that  there  is  a  wide  difference  between  silence 
and  encouragement." 

"  A  party  setting  up  an  equitable  estoppel  is  himself  bound  to  the 
exercise  of  good  faith  and  due  diligence  to  ascertain  the  truth." 
2  Story  Eq.  (12th  ed.)  §  1553b.  Whether  the  defendant  in  that 
respect  was  negligent  under  the  circumstances  of  the  present  case 
was  a  question  of  fact.  Moore  v.  Botvman,  47  N.  H.  494.  The  court 
below  was,  therefore,  correct  in  holding  that  it  should  not  be  said, 
as  a  matter  of  law,  that  the  defendant  was  guilty  of   negligence. 

5.  The  appellant  claims  that  incompetent  testimony  was  admitted 
to  his  prejudice,  but  we  find  no  ruling  that  supports  this  contention. 

No  other  question  is  presented.  It  follows  that  the  judgment 
should  be  affirmed. 


CHAPTER  II. 
Title  by  Derivative  Acquisition. 

I.  From  the  state. 

Lewis,  C.  J.,  in  THE  MAYOR  v.  THE  OHIO  AND  PENNSYL- 
VANIA  RAILROAD  COMPANY. 

26  Pennsylvania  State,  355. 

It  must  be  remembered  that  the  ground  was  public  ground, 
owned  and  in  charge  of  the  public  municipal  authorities,  for  public 
uses.  It  may  also  be  inferred  that  the  grant  was  made  on  the  appli- 
cation of  the  railroad  company,  and  on  their  own  representation  of 
the  quantity  of  ground  which  they  deemed  it  necessary  to  occupy. 
In  the  construction  of  a  grant  it  is  important  to  have  respect  to  the 
estate  of  the  grantor,  to  the  consideration  which  leads  the  estate, 
and  to  the  recompense  and  loss  which  is  sustained.  Gough  v. 
Howard^  3  Bulst.  125.  Where  a  grant  is  made  by  the  king  at  the 
suit  of  the  grantee,  it  is  to  be  taken  most  beneficially  for  the  king 
and  against  the  grantee.  2  Bl.  Com.  347;  Hob.  243;  Hard.  309. 
A  grant  made  by  the  commonwealth,  or  by  a  municipal  corporation 
under  authority  derived  from  the  commonwealth,  at  the  instance 
and  for  the  convenience  of  a  railroad  company,  is  governed  by  the 
same  rule  of  construction,  and  nothing  is  to  be  taken  by  implication 
against  the  public,  except  what  necessarily  flows  from  the  nature  and 
terms  of  the  grant. 


II.  From  individuals  by  involuntary  alienation. 

1.  Title  by  Eminent  Domain.1 

EATON  v.  B.   C.  &  M.   RAILROAD. 

51  New  Hampshire,  504.  —  1872. 
[Reported  herein  at  p.  1.] 

1  The  cases  illustrate  the  exercise  of  the  power  by  corporations  under  the 
authority  of  the  state.  See  also  pp.  141  and  120,  note.  The  matter  is  largely 
regulated  by  statute.  For  the  New  York  Law,  see  Code  Civ.  Proc,  §§  3357— 
3384.  —  Ed. 

[1069] 


I070  TITLE    BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

WHEELER  v.  KIRTLAXD. 
27  New  Jersey  Equity,  534.  —  1875. 
[Reported  herein  at  p.  698.] 


2.   Title  by  Marriage.1 
RILEY'S  ADMINISTRATORS  v.  RILEY. 

19  New  Jersey  Equity,  229.  —  1868. 
[Reported  herein  at  p.  26.] 


BABB  v.  PERLEY. 

1  Maine,  6.  —  1820. 
[Reported  herein  at  p.  2S.] 

HOUGHTON  v.  HAPGOOD. 

13  Pickering  (Mass.),  154.  — 1832. 

[Reported  herein  at  p.  24.] 


FEARS  v.  BROOKS. 

12  Georgia,  195.  —  1852. 
[Reported  herein  at  p.  571.] 

3.  Title  by  Bankruptcy.5 
JOHNSON  v.  GEISRITER. 

26  Arkansas,  44.  —  1870. 

McClure,  J.  — On  the  3d  of  September,  1867,  Geisriter  executed 
and  delivered  his  note  to  W.  W.  Johnson,  for  $600,  payable  one  year 

1  Dower  inchoate  is  rather  a  lien  or  charge  than  a  title.  Curtesy  inchoate  is  an 
except  in  those  States  where  the  wife  can,  by  her  separate  deed,  convey  the 
land  free  and  clear  of  her  husband's  claim.  Dower  assigned  and  curtesy  con- 
■  intimate  are  of  1  ourse  estates.  —  Ed, 

5  This  is  governed  by  Btatutory  regulations  in  the  various  States  except  when 
thrrc  is  a  general  bankruptcy  act  in  force,  in  which  case  the  federal  courts  may 


II.  3-]    FROM  INDIVIDUALS  BY  INVOLUNTARY  ALIENATION.       IO7I 

after  date.     W.  W.  Johnson  assigned  said  note  to  one  Ben  S.  John- 
son, the  plaintiff  in  this  action,  who  brought  suit  on  the  same. 

Geisriter  answered,  setting  up  that  W.  W.  Johnson  had  filed  his 
petition  in  bankruptcy;  that,  at  the  time  of  filing  said  petition,  said 
Johnson  was  the  owner  of  the  note  sued  on;  that  said  note  was  not 
included  in  Johnson's  schedule  of  assets,  and  that  he  had  no  right 
or  authority  to  assign  the  same;  that  said  W.  W.  Johnson,  long  after 
the  filing  of  said  petition  in  bankruptcy,  was  the  owner  of  said  note; 
that  the  assignment  to  Ben  S.  Johnson,  the  plaintiff,  was  and  is  null 
and  void,  and  that  said  plaintiff  acquired  no  legal  title  by  reason  of 
said  assignment. 

To  this  answer  the  plaintiff  demurred  on  the  ground  that  "  the 
answer  does  not  state  facts  sufficient  to  constitute  a  defense." 

The  court  overruled  the  demurrer,  the  plaintiff  rested,  and  judg- 
ment was  for  the  defendant.     The  plaintiff  appealed. 

The  question  presented  is  whether  a  bankrupt  can  assign  prop- 
erty that  ought  to  have  been  scheduled,  after  having  filed  a  petition. 

The  demurrer  admits  the  filing  of  the  petition  of  bankruptcy,  by 
W.  W.  Johnson,  the  ownership  by  him  of  the  note  at  the  time  o 
filing  the  petition,  that  it  was  not  included  in  the  schedule  of  assets 
of  said  Johnson,  and  that  long  after  the  filing  of  the  petition  in  bank- 
ruptcy, Johnson  was  the  owner  of  the  note. 

The  appellant  urges  that  a  bankrupt's  assets  do  not  pass  to  the 
assignee  until  the  assignee  has  been  appointed  and  qualified. 

The  bankrupt  act  requires  the  petitioner  to  make  a  schedule  of  his 
assets  and  liabilities.  It  also  declares  that,  upon  the  appointment 
of  the  assignee  and  his  qualification,  the  judge,  or,  where  there  is  no 
opposing  interest,  the  register  shall,  by  an  instrument  under  his 
hand,  assign  and  convey  to  the  assignee  all  the  interest,  real  and 
personal,  of  the  bankrupt,  and  that  such  assignment  shall  relate  back 
to  the  commencement  of  said  proceedings  in  bankruptcy;  and  there- 
fore, by  operation  of  law,  the  title  to  all  such  property  and  estate, 
both  real  and  personal,  shall  vest  in  said  assignee,  *  *  *  and 
shall  dissolve  any  attachment  made  within  four  months  next  preced- 
ing the  commencement  of  said  proceedings.  The  nth  section  of 
the  act  declares:  "  The  filing  of  such  petition  shall  be  an  act  of 
bankruptcy,  and  such  petitioner  shall  be  adjudged  a  bankrupt." 

The  appellant  urges  that  the  answer  does  not  disclose  that  the 
petitioner  had  been  adjudged  a  bankrupt,  or  that  an  assignee  had 

restrain  the  state  courts  from  proceeding  in  such  cases.  In  re  Miller,  6  Biss. 
30,  Fed.  Cases  No.  9551.  See  the  National  Bankruptcy  Act  of  1898,  for  the 
present  law.  The  provisions  of  the  New  York  statute  are  to  be  found  in  the 
Code  Civ.  Proc,  §§  2149-221S.  —  En. 


IO72  TITLE    BY   DERIVATIVE   ACQUISITION.      [PT.  VI.  CH.  II. 

been  appointed  and  qualified.  The  language  of  the  nth  section  is, 
that  "  the  filing  of  the  petition  shall  be  an  act  of  bankruptcy,  and 
such  petitioner  shall  be  adjudged  a  bankrupt."  We  construe  this 
language  to  mean  that  a  petitioner  shall  be  deemed  a  bankrupt  from 
the  day  on  which  he  files  his  petition. 

The  moment  the  petition  is  filed  the  bankrupt  is  civilly  dead. 
During  the  interval  existing  between  the  filing  of  the  petition  and 
the  appointment  of  the  assignee,  a  condition  of  things  exists  not  unlike 
that  in  the  case  of  a  person  dying  intestate,  and  before  the  appoint- 
ment of  an  administrator.  On  the  death  of  a  person  intestate,  no  one 
is  authorized  to  dispose  of  or  assign  his  assets.  A  bankrupt  is 
civiliter  mortuus,  from  the  day  on  which  he  files  his  petition,  and 
during  the  interval,  between  the  filing  of  the  petition  and  the 
appointment  of  the  assignee,  no  assignment  of  his  assets  can  be 
made.  A  judgment  rendered  against  a  bankrupt,  after  the  filing  of 
the  petition,  and  before  the  appointment  of  an  assignee,  is  as  much 
a  nullity  as  a  judgment  rendered  against  a  deceased  person,  who  has 
no  legal  representative.  If  no  valid  judgment  can  be  rendered 
against  a  bankrupt  at  such  a  time,  it  is  not  at  all  probable  that  the 
law  gives  him  the  power  to  make  a  valid  assignment  of  assets  that 
should,  and  which  the  appellant  admits,  ought  to  have  been  placed 
in  the  schedule. 

The  judgment  of  the  Jefferson  County  Court  is  affirmed  with  costs. 


4.   Title  by  Sale  Under  an  Execution.1 

NORTHERN  BANK  OF  KENTUCKY  v.   ROOSA. 

13  Ohio,  335.  — 1S44. 
[Reported  herein  at  p.  10.] 


WEBSTER  v.  PARKER. 

42  Mississippi,  465.  —  1869. 

[Reported herein  at  p.  42.] 


1  Th                 are  regulated  by  statute.  Usually  a  period  of  some  months  is 

allowed  foi    redemption   before   tin-  sheriff  gives  the  deed.     For  the  New  York 

Statute  see  Code  Civ.  Proc,  .'.'  1430  1478,  Homestead  rights  are  exempt  from 
execution  sale,      id.,  ,';'   1  197    1  \Ql.  —  ED. 


III.  i.]    FROM  INDIVIDUALS  BY  INVOLUNTARY  ALIENATION.     IO73 

5.   Sales  by  Guardians,   Executors,  Administrators,  Etc.1 

HOUGHTON  v.  HAPGOOD. 

13  Pickering  (Mass.),  154.  —  1832. 

[Reported  herein  at  p.  24.] 


MARCH  v.  BERRIER. 

6  Iredell's  Equity  (N.  C),  524.  —  1350. 

[Reported  herein  at  p.  70.] 


6.   Sales  by   Judicial  Decree. 
LANE  v.  KING. 

8  Wendell  (N.  Y.),  584.  —  1832. 
[Reported  herein  at  p.  197 ,]s 


7.  Tax  Sales.3 

III.  From  individuals  by  voluntary  alienation  inter  vivos. 
1.   Common  L^v  Conveyances. 

a.  Primary.* 

b.  Secondary. 5 

1  Executors  may  be  empowered  by  the  will  to  sell.  In  all  oLher  cases  they 
can  sell  only  when  duly  authorized  by  the  proper  court.  New  York  Code  Civ. 
Proc,  §§  2749-2801.  For  the  N.  Y.  statutory  proceeding  for  the  disposition  of 
the  reai  property  of  an  infant,  lunatic,  idiot  or  habitual  drunkard,  see  Code  Civ. 
Pro.,  §§  2345-2364.  —  Ed. 

2  In  many  States  a  sale  on  foreclosure  does  not  cut  off  the  equity  of  redemp- 
tion until  the  expiration  of  a  certain  time  (fixed  by  statute)  after  the  sale  has 
taken  place.  —  Ed. 

3  These  are  regulated  wholly  by  statute.  See  for  New  York  the  "Tax  Law  " 
of  1896.  —  Ed. 

4  These  are  feoffment,  gift,  grant,  lease,  exchange  and    partition.  —  Ed. 

5  These  are  release,  confirmation,  surrender,  assignment  and  defeasance. 
Examples  of  many  of  the  forms  of  common  law  conveyances  will  be  found  in 
the  cases  already  reported.  —  Ed. 

LAW  OF  PROP.   IN  LAND  —  6S 


IO/4  TITLE   BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.   II. 

2.  Conveyances  Operating  Under  the  Statute  of  Uses,1 
VERDIN  v.  SLOCUM. 

71  New  York,  345.  —  1877. 

Earl,  J. — The  appellant  Thompson,  the  purchaser,  at  a  mort- 
gage foreclosure  sale,  seeks  to  be  released  from  his  purchase  upon 
the  claim  that  the  proceedings  in  the  foreclosure  action  above 
entitled,  are  so  defective  as  not  to  give  him  a  good  title.  He  insists 
upon  several  defects,  but  one  of  which  it  will  be  necessary  to  con- 

isider,  and  that  is,  that  a  judgment-creditor  of  William  B.  Slocum 
should  have  been  made  a  party  to  the  action.  Hiram  Slocum  died 
seised  of  the  mortgaged  premises  subject  to  the  mortgage.  He  left 
a  will  in  which  he  devised  his  estate,  including  these  premises,  to  his 
executors  upon  trust  that  they  should  divide  the  same  into  three 
parts;  and,  as  to  one-third  part,  he  provided  as  follows:  "  I  direct 
my  said  trustees  to  permit  and  suffer  my  son  William  B.  Slocum  to 
have,  receive  and  take  the  rents,  issues  and  profits  thereof  for  the 
term  of  his  natural  life;  and  after  his  decease,  I  give,  devise  and 
bequeath  the  same  part  or  share  to  the  heirs-at-law  of  my  said  son." 
It  is  claimed  on  the  part  of  the  plaintiff,  that  these  provisions  created 
a  valid,  express  trust,  and  hence  that  the  legal  title  was  vested  in 
the  trustees,  and  that  the  judgment  did  not  become  a  lien  upon  the 
one-third  thus  devised,  and  hence  that  the  judgment-creditor  was 
not  a  necessary  party,  and  this  was  the  view  taken  in  the  court 
below.  On  the  part  of  Thompson  it  is  claimed  that  the  trust  was 
invalid,  and  hence  that  William  B.  Slocum  took  a  life  estate  in  the 
land  upon  which  the  lien  of  the  judgment  attached,  and  hence  that 
the  judgment-creditor  should  have  been  made  a  party,  and  this 
claim  we  believe  to  be  well  founded.  The  trust  attempted  to  be 
created  is  a  passive  one,  and  condemned  by  the  statute.  The  trus- 
tees had  no  active  duties  to  discharge.  They  were  not  "  to  receive 
the  rents  and  profits  of  lands,  and  apply  them  to  the  use  "  of  Wil- 
liam B.  Slocum,  or  to  pay  them  over  to  him.  1  R.  S.  729,  §  55. 
But  they  were  directed  "  to  permit  and  suffer  "  him  "  to  have, 
receive,  and  take  the  rents  "  and  profits.  They  had  no  discretion 
to  exercise.  They  could  not  refuse  the  permission,  and  they  could 
in  no  way  exercise  any  control  over  the  rents  and  profits.  That 
h  a  trust  is  condemned  by  the  statute  has  never  been  doubted. 
Parki  v.  Parks,  9  Paige,  107;  /arris  v.  Babeock,  5  Barb.  139;  Beek- 
man  v .  Bonsor,  23  N.  Y.  298,  314,  316.  William  B.  Slocum  was 
entitled  to  the  possession  of  the  land  and  to  the  rents  and  profits 

1  For  the  origin  of  these,  see  j>.  854  supra.  —  Ed. 


III.  4]  DEEDS.  IO75 

thereof,  during  his  life,  and  hence  the  statute  vests  the  legal  title  in 
him  for  the  same  term.  1  R.  S.  727,  §§  47,  49;  Craig  v.  Craig,  3 
Barb.  Chy.  77.  It  follows,  therefore,  that  the  judgment  was  a  lien, 
and  that  the  life  estate  was  affected  thereby,  and  for  this  defect  the 
motion  should  have  been  granted.1 


WYMAN  v.  BROWN. 

59  Maine,   137.  —  1863. 
[Reported  herein  at  p.  909.] 

3.   Grants.3 


4.   Modern  Transfers.3 

a.   By  deed  or  by  parol  ?* 

b.  Requisites  for  (and  of)  a  deed  of  conveyance. 

(1.)  Competent  Parties.6 

THOMAS  v.  WYATT. 

31  Missouri,  188.  —  i860. 

Ejectment. — Plaintiff  claims  under  the  "  Samuel  Johnson"  certi- 
ficate which  appears  to  have  been  assigned  to  him  the  same  day  it 


1  The  above  case  illustrates  the  direct  form  of  a  conveyance  operating  under 
the  statute  of  uses.  The  practical  conveyances  of  this  sort,  however,  are  the 
covenant  to  stand  seised,  the  deed  of  bargain  and  sale,  and  the  deed  of  lease 
and  release.  Most  of  these  forms  of  conveyances  are  now  construed  as 
"grants."     §  211,  N.  Y.  R.  P.  L.  —  Ed. 

-Originally  the  common-law  method  of  conveying  interests  not  lying  in 
livery,  grants  are  now  by  statute  in  England  and  most  States,  the  customary 
form  of  conveyance  of  corporeals  in  possession.  —  Ed. 

3  The  case  of  Wyman  v.  Brown,  reported  supra,  p.  909  contains  on  pp. 
916-917  a  discussion  of  the  nature  of  transfers  by  virtue  of  our  modern 
statutes.  —  Ed. 

4  See  N.  Y.  R.  P.  L.,  §§  207,  208.  The  express  requirement  for  a  seal  to  a 
grant,  contained  in  1  R.  S.  738,  §  137,  is  omitted  here,  and,  as  will  be  seen  from 
the  report  of  the  commissioners,  purposely.  It  would  seem,  however,  from  the 
forms  in  §  223,  R.  P.  L.,  that  grants  are  still  to  be  made  by  deed.  See  for  old 
rule,  Jackson  v.  Wood,  12  Johns.  73.  An  instrument  without  seal  will  carry  the 
equitable  title,  at  least.  Todd  v.  Eighmie,  4  App.  Div.  (N.  Y.  Supreme 
Ct.)  9.  —  Ed. 

5  No  special  cases  are  here  given  to  illustrate  the  subject  of  signing,  acknowl- 
edging, witnessing  or  registering  a  deed.  —  Ed. 

6  See  under  part  V.  supra.  — Ed. 


IO76  TITLE   BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

was  issued  —  Aug.  19,  1829.  The  patent  was  issued  on  this  certi- 
ficate in  1843.  Thomas  thereafter  brought  a  suit  in  equity  against 
"  Samuel  Johnson  "  and  obtained  a  decree  vesting  Johnson's  legal 
title  in  him.  Service  of  process  in  this  suit  was  by  order  of  publi- 
cation. 

In  1845  another  patent  was  issued  for  the  same  premises  and  on 
the  same  certificate  to  one  Samuel  M.  Coleman  as  assignee  of 
"  Samuel  Johnson."  Coleman  conveyed  part  of  the  tract  to  defend- 
ant who  is  in  possession.  Judgment  for  plaintiff.  Defendant 
appeals. 

Scott,  J.  *  *  *  The  ground,  on  which  the  defendant  repelled 
the  plaintiff's  right  to  a  recovery,  was  that  Johnson  was  a  fictitious 
person;  that  there  was  no  such  man  in  being,  and  therefore  the 
patent  was  void,  and  the  plaintiff  could  not  derive  any  title  from  it 
or  the  patentee.  There  is  no  doubt  that  a  patent  issued  to  a  person 
not  in  existence  is  void.  This  was  the  view  taken  of  this  case  when 
it  was  formerly  here.  But  now  we  have  more  light  upon  it,  and 
although  we  adhere  to  the  opinion  then  expressed,  we  doubt  whether 
it  is  applicable  to  the  case  as  it  is  now  presented.  The  only  theory 
that  will  solve  the  question  involved  in  this  litigation  (and  we  think 
there  is  sufficient  evidence  to  put  it  to  a  jury)  is,  that  Samuel  John- 
son is  an  assumed  name  of  James  Coleman,  and  not  a  fictitious  per- 
son. If  we  regard  Coleman  as  usurping  the  name  of  Johnson  when 
it  suited  his  purposes,  we  have  a  clue  by  which  we  may  be  guided 
to  the  justice  of  this  case.  We  have  no  doubt  that  this  was  the  light 
in  which  this  matter  was  viewed  in  the  court  below,  but  as  the  case 
was  tried  by  a  jury  we  do  not  conceive  that  the  language  of  the 
instruction  was  sufficiently  pointed  to  direct  their  attention  to  the 
matter  really  in  issue.  If  James  Coleman  used  the  name  of  Samuel 
Johnson  to  designate  himself,  when  he  thought  proper,  and  made 
the  entry  in  the  name  of  Samuel  Johnson  for  himself,  merely  using 
that  name  as  he  would  the  one  by  which  he  was  usually  known,  and 
endorsed  it  in  the  name  of  Samuel  Johnson  with  the  same  view,  then 
the  transaction  is  to  be  regarded  as  though  James  Coleman  had 
used  instead  of  the  name  "  Samuel  Johnson  "  the  name  of  "  James 
Coleman."  So  the  patent  to  Samuel  Johnson  is  to  be  regarded  as 
to  James  Coleman  and  not  to  a  fictitious  person.  1  knew  an  indi- 
vidual once,  who  was  sued  in  an  action  in  which  heavy  damages  were 
<  laimed,  and  during  its  pendency  he  entered  a  great  quantity  of  land 
in  his  name  reversed  or  spelt  backwards.  Now  no  one  supposed 
that,  if  a  judgment  had  gone  against  him,  that  the  title  had  not 
passed  from  1  he  I '  nited  States  so  that  the  land  would  have  been  sub- 
jei  t  to  tin  claim  of  the  creditor,     So  we  suppose  it  is  competent  to 


III.  4.]  DEEDS.  IO77 

the  party  here  to  prove  that  James  Coleman  was  Samuel  Johnson  or 
James  Coleman,  just  as  it  suited  his  purposes;  that  he  was  a  man 
who  used  two  names;  that  to  effect  his  ends  he  endeavored  to  make 
it  appear  that  he  was  two  different  persons.  It  matters  not  whether 
it  was  generally  known  that  hcwent  by  two  names  or  not.  The  law 
is  the  same,  though  he  was  known  by  one  name  only,  as  though  he 
was  known  by  both.  If  a  man  signs  a  bond  by  a  name  by  which  he 
was  never  called  or  known,  or  which  he  had  never  used  before,  he 
would  be  bound  by  it.  Carpenter  v.  Williams^  2S  Mo.  460.  *  *  * 
This  case,  then,  depends  on  facts  to  be  determined  by  a  jury. 
These  facts  are  whether  James  Coleman  and  Samuel  Johnson  were 
not  the  same  identical  person,  and  the  name  Samuel  Johnson  was 
assumed  by  Coleman  to  carry  out  his  fraudulent  designs.  If  these 
facts  are  found,  the  plaintiff  will  be  entitled  to  recover  If,  on  the 
other  hand,  the  jury  believe  from  the  evidence  that  the  government, 
in  issuing  the  patent,  intended  it  for  another  person  distinct  and 
separate  from  James  Coleman,  and  that  there  was  no  such  person 
ever  in  existence,  then,  in  the  nature  of  things,  no  title  could  pass 
by  the  patent. 

Reversed  and  remanded. 


(2.)  Real  Property  to  be  Conveyed. 

DART  v.  DART. 

7  Connecticut,  250.  —  1828. 

Ejectment  to  recover  an  undivided  fifth-part  of  certain  land. 
Roger  Dart  devised  the  demanded  premises  to  his  sons  William  and 
Soiomon,  their  heirs  and  assigns  forever,  upon  certain  conditions 
and  with  the  following  limitation :  ' '  My  will  further  is  that  my  sons 
shall  not  either  of  them  sell  or  dispose  of  the  lands,  which  I  have 
herein  given  to  each  of  them,  from  their  lawful  male  issue;  and  in 
case  either  of  my  sons  should  die  without  lawful  male  issue,  in  such 
case,  his  land  hereby  given  shall  revert,  and  become  the  estate  of 
my  surviving  sons  or  their  male  issue."  Solomon  entered  on  the 
land  and  in  1794,  together  with  his  son  Solomon,  Jr.,  quitclaimed  to 
defendants.  Later  by  a  separate  deed  his  other  son,  Caleb  (the 
plaintiff),  quitclaimed  to  the  same  parties.  Solomon,  Senior,  died 
in  1825. 

The  judge  charged  the  jury  that  Solomon,  Senior,  took  an  estate 
in  tail  male  and  not  a  life-estate.  That  title  did  not  vest  in  Caleb 
till  his  father's  death,  and  that  plaintiff  is  not  estopped  by  his  deed. 


IO78  TITLE   BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CM.  II. 

Peters,  J.  — This  case  presents  three  questions.  1.  What  estate 
did  Solomon  Dart  the  elder  take  under  this  devise?  2.  What  estate 
passed  from  the  plaintiff  to  the  releasees?  3.  Is  the  plaintiff  estopped 
by  his  deed  to  them? 

To  answer  the  first  question,  we  must  ascertain  the  intention  of 
the  devisor;  and  this  can  be  learned  only  from  his  will.  His  first 
object  seems  to  have  been,  to  provide  for  his  sons,  during  their 
lives;  the  second,  to  perpetuate  his  estate  in  his  name  and  family. 
This,  according  to  the  notions  of  those  days,  could  be  effected  only 
by  an  entailment.  He  therefore  used  expressions,  which  have 
always  been  understood  to  create  an  estate  tail.  In  the  first  place, 
he  created  an  estate  of  inheritance  in  his  sons.  He  then  forbade 
their  selling  it  away  from  their  lawful  male  issue.  And  lastly,  he 
provided,  that  if  either  of  his  sons  should  die  without  such  issue,  his 
land  should  revert,  and  become  the  estate  of  his  surviving  sons,  or 
their  male  issue.  This  completed  the  entailment  in  perpetuity, 
according  to  his  views;  though  not  according  to  the  modern  decis- 
ions. Chappel  v.  Brewster,  Kirby,  175;  Hamilton  v.  Hempstead,  3 
Day,  332. 

But  the  defendants  claim,  that  Solomon,  the  devisee,  took  an  estate 
in  fee  simple  conditional  or  in  remainder.  I  am  satisfied,  upon  the 
authority  of  many  adjudged  cases,  both  English  and  American,  that 
he  took  an  estate   in  tail  male  general.     *     *     * 

2.  What  estate  passed  from  the  plaintiff,  by  his  deed  to  the 
releasees?  By  the  common  law,  a  release  is  a  secondary  conveyance, 
and  is  a  discharge  of  a  man's  right  in  land  or  tenements  to  another, 
who  hath  some  former  estate  in  possession.  Shep.  Touch.  318;  2 
Bl.  Com.  328.  But  in  this  State,  a  release  is  considered  as  a  primary 
conveyance,  and  passes  all  the  right  of  the  releasor  to  the  releasee, 
provided  no  other  person  be  in  possession  adversely;  and  operates 
as  a  conveyance  without  warranty.  1  Sw.  Dig.  133.  But  if  he  have 
no  right,  nothing  passes,  not  even  a  chose  in  action.  What  estate, 
then,  had  the  issue  of  the  first  donee  in  tail,  during  his  life?  My 
answer  is,  none.  The  plaintiff  could,  therefore,  convey  none.  Such 
issue  is  only  an  heir  apparent  or  presumptive.  His  title  is  the  bare 
possibility,  a  mere  chance,  of  becoming  eventually  the  heir  in  tail; 
for  the  maxim  is,  "  nemo  est  hares  viventis."  And  it  is  a  well-settled 
rule,  that  a  mere  possibility  cannot  be  released  or  conveyed ;  and 
tin-  reason  thereof  is,  that  a  release  supposes  a  right  in  being.  Shep. 
Touch.  319;  Bac.  A.br.  tit.  Release,  H.  Hence,  it  is  holden,  that  ah 
heir-al  law  cannol  release  to  his  father's  disseisor,  in  the  lifetime  of 
the  father;  inv  the  heirship  of  the  heir  is  a  contingent  thing;  for  he 
may  die  in  the  lifetime  of  his  father.      Ibid.      This  question  was  inde- 


III.  4.]  DEEDS.  IO79 

feasibly  answered,  by  our  great  master  Littleton,  nearly  four  centu- 
ries ago.  "  If  there  be  father  and  son,  and  the  father  be  disseised, 
and  the  son  (living  the  father)  releaseth  by  his  deed  to  the  disseisor, 
the  right  which  he  hath,  or  may  have,  in  the  tenements,  without 
clause  of  warranty,  and  after  the  father  dieth,  this  son  may  lawfully 
enter  upon  the  possession  of  the  disseisor;  for  that  he  hath  no  right 
in  the  land  in  his  father's  life-time,  but  the  right  descended  to  him 
after  the  release  made,  by  the  death  of  his  father;  for  no  right 
passeth  by  a  release,  but  the  right  which  the  releasor  hath,  at  the 
time  of  the  release  made;  and  if  he  hath  no  right,  the  release  is 
void."  Littleton,  §  446;  Lampef s  Case,  10  Rep.  51  a.  "And  in 
some  cases,  saith  Sheppard  (Touch.  321),  "a  release,  like  a  con- 
firmation, doth  enure  by  way  of  abridgment.  But  a  man  canrfot  bar 
himself  of  a  right  that  shall  come  to  him  hereafter;  and  therefore  it 
is  held,  that  these  words  used  in  releases,  quce  quoins  modo  in  futuro 
habere  potero,  are  to  no  purpose."  This  is  a  mere  quotation  from  the 
text  of  Littleton  (ubi  supra)  which  is  there  sanctioned,  by  the  com- 
mentary of  Sir  Edward  Coke.  "  But  here,  in  the  case  which  Little- 
ton puts,  where  the  son  releases  in  the  lifetime  of  his  father,  this 
release  is  void,  because  he  hath  no  right  at  all,  at  the  time  of  the 
release  made,  but  all  the  right  was  at  that  time  in  the  father;  but 
after  the  decease  of  the  father,  the  son  shall  enter  into  the  land 
against  his  own  release.  1  Inst.  265  a.  And  we  are  informed,  by 
Lord  Chief  Justice  Trevor,  in  delivering  his  opinion  in  Arthur  v. 
Bokenham,  Fitzgib.  234,  that  this  text  of  Littleton  had  never  been 
contradicted.  Hargrave's  Notes  on  Co.  Litt.  265,  a.  n.  212.  The 
same  doctrine  was  recognized,  by  the  Supreme  Court  of  New  York, 
in  McCrakin  v.  Wright,  14  Johns.  Rep.  193,  wherein  it  was  decided, 
that  no  title,  not  in  esse,  would  pass  by  a  deed  of  bargain  and  sale 
and  quitclaim,  unless  it  contain  a  warranty,  in  which  last  case,  it 
will  operate  as  an  estoppel.  And  in  Davis  v.  Hayden  et  a/.,  9  Mass. 
Rep.  514,  it  was  decided,  that  nothing  passes  by  a  conveyance  of 
land,  of  which  the  grantor  is  only  heir  apparent. 

3.  Is  the  plaintiff  estopped  to  claim  against  his  own  deed?  This 
question  is  already  answered,  by  the  citations  from  Littleton,  §  446, 
and  the  case  in  14  Johns.  Rep.  193.  "  If  there  be  a  warrantie,"  saith 
Lord  Coke  (1  Inst,  ubi  supra)  "  annexed  to  the  release,  then  the 
sonne  shall  be  barred;  for  albeit  the  release  cannot  barre  the  right, 
for  the  cause  aforesaid,  yet  the  warrantie  may  rebut  and  barre  him 
and  his  heirs  of  a  future  right."  But  the  deed  in  question  is  a  mere 
release  or  quit-claim,  and  contains  no  warranty,  express  or  implied. 

New  trial  not  to  be  Granted. 


I08o  TITLE   BY   DERIVATIVE   ACQUISITION.      [PT.  VI.  CH.  II. 

(3.)  Words  of  Conveyance. 
McKINNEY  v.  SETTLES. 

31  Missouri,  541.  —  1S62. 

Ejectment.  —  The  case  was  by  agreement  made  to  depend  upon 
the  question  whether  an  instrument  executed  and  delivered  to  plain- 
tiff amounted  to  a  conveyance  in  presenti.  The  court  below  held  it 
did  not. 

Bates,  J.,  delivered  the  opinion  of  the  court.  — It  is  difficult  to 
determine  what  was  intended  by  the  maker  of  the  instrument  under 
which  the  plaintiff  claimed  title.  In  the  memorandum  attached 
to  the*  instrument,  and  signed  by  John  McKinney,  it  is  called  a  codi- 
cil or  supplement  to  his  last  will  and  testament,  whilst  in  the  certifi- 
cate of  acknowledgment  the  whole  are  called  "  the  foregoing  deeds 
of  gift."  It  may  not  be  necessary  to  define  what  is  the  character 
of  the  instrument,  for  if  it  be  not  a  deed  of  conveyance  in  presenti, 
the  plaintiff  cannot  recover  upon  it.  In  order  to  determine  whether 
it  be  such  a  deed,  the  whole  instrument  must  be  taken  together,  and 
effect  given,  if  possible,  to  every  part  of  it.  It  does  not  contain  the 
usual  operative  words  of  conveyance,  and  it  contains  an  obligation 
to  make  (in  the  future)  "  a  good,  sufficient  right  and  title  to  the  said 
described  tract  of  land,  clear  from  me  or  any  of  the  rest  of  my  heirs, 
to  the  whole,  sole  right  and  property  of  my  said  son,  James  H.  Mc- 
Kinney, and  his  heirs,  forever."  It  appears  to  be  reasonable,  upon 
consideration  of  the  whole  instrument,  to  suppose  that  John  Mc- 
Kinney believed  that  he  had  no  power  then  to  convey,  and,  there- 
fore, he,  in  order  to  make  a  sort  of  partition  of  lands  among  his 
children,  bound  himself  under  a  penalty  to  convey  to  each  one  a  par- 
ticularly described  tract  of  land,  so  soon  as  he  should  have  power 
to  do  so.  Taking  this  to  be  the  view  and  intention  of  John  Mc- 
Kinney, we  must  see  that  he  used  words  apt  for  that  purpose.  The 
only  words  which  might  by  any  construction  be  deemed  operative 
words  of  present  conveyance  are  the  words  "  sign  over."  We  can- 
not, however,  think  that  they  import  more  than  an  assignment  of 
John  McKinney's  interest  in  the  land,  the  title  to  which  was  then 
imperfect  and  inchoate,  and,  therefore,  not  operating  as  a  present 
conveyance  of  the  land  itself  sufficient  to  maintain  an  action  of  eject- 
ment in  the  name  of  James  H,  McKinney. 

In  the  maimer  in  which  this  case  comes  up  no  question  arises 
whether  an  after-acquired  title  by  James  McKinney  would  inure  to 
th<-  benefil  of  James  II.   McKinney. 

'I  he  judgment  below  is  affirmed. 


III.  4-]  DEEDS.  I08l 

(4.)  A  Description  of  the  Premises  Sufficient  to  Identify  Them. 
(a)    The  sufficiency  of  the  description. 

HOBAN  v.  CABLE. 
102  Michigan,  206.  —  1894. 

Ejectment.  — Judgment  for  plaintiff.     Defendant  brings  error. 

Montgomery,  J.  —  *  *  *  2.  As  the  deed  to  Laurie  McLeod 
was  first  recorded,  and  as  defendant  claims  it  in  fact  read  when  exe- 
cuted, the  description  of  the  land  was  as  follows: 

"  Beginning  on  Market  street,  between  the  lot  hereby  intended  to 
be  conveyed  and  a  lot  confirmed  by  the  Government  of  the  United 
States  to  Ambrose  R.  Davenport;  thence  north,  62  degrees  15  min- 
utes west,  158.96  feet;  thence  south,  31  degrees  west,  60  feet;  thence 
south,  62  degrees  15  minutes  west,  158.96  feet,  to  Market  street; 
thence  along  said  street  north,  27  degrees  55  minutes  east,  to  the 
place  of  beginning." 

Was  this  a  sufficient  description,  or  must  the  deed  be  treated  as  a 
nullity?  The  starting  point  is  definite.  The  first  line,  to  point  b, 
is  also  certain,  as  is  the  line  between  points  b  and  c.  But  if  the 
direction  of  the  next  line  is  followed  as  given  in  the  instrument,  the 
terminus  is  at  e,  and  the  line  named  in  the  succeeding  portion  of 
the  description  would  end  at  f.1  But  the  course  given  after  reach- 
ing point  c  is  not  the  only  means  of  identification  adopted.  That 
line  is  described  as  terminating  at  Market  street.  If  we  exclude 
the  words  indicative  of  the  direction  of  the  line,  and  carry  the  line 
in  the  most  direct  course  to  Market  street,  we  have  not  only  a  line 
answering  to  the  other  terms  of  the  deed,  but  one  which,  with  its 
extension,  incloses  something,  which  is,  by  the  terms  of  the  deed, 
"a  lot  intended  to  be  conveyed,"  and  which,  to  answer  the  terms 
of  the  portion  of  the  description  relating  to  the  starting  point,  must 
lie  next  to  "  a  lot  confirmed  by  the  Government  of  the  United  States 
to  Ambrose  R.  Davenport."  To  make  this  clearer,  the  deed  con- 
tains the  statement  that  from  the  terminus  of  the  third  line  named 
in  the  description  the  boundary  shall  extend  along  Market  street  to 
the  place  of  beginning.  We  think  the  intent  of  the  grantor  is  clear, 
and  that  the  deed  is  not  a  nullity  for  want  of  a  sufficient  description. 
See  Anderson  v.  Baughman,  7  Mich.  69;  Cooper  v.  Bigly,  13  Id.  463; 
Dwightx.   Tyler,  49  Id.  614. 

1  The  case  in  the  official  report  is  accompanied  by  a  map.  If  the  student  will 
draw  a  rough  design,  he  will  easily  identify  the  points,  a,  b,  c,  and  will  see 
that  the  courses  and  distances  as  given  do  not  make  an  enclosure.  —  Ed. 


1082  TITLE    BY    DERIVATIVE   ACQUISITION.      [PT.  VI.  CH.  II. 

A  number  of  defendant's  points  depend  upon  this,  and  it  becomes 
unnecessary  to  treat  in  detail  some  of  his  assignments  of  error. 
The  deed  being  valid  to  convey  the  land,  the  record  was  notice  to 
subsequent  purchasers. 

3.  One  of  the  conveyances  under  which  plaintiff  claims  contained 
a  description  as  follows: 

"  A  lot  60  feet  wide  on  Market  street  and  128.90  feet  deep,  being 
the  north  end  of  lot  293  in  the  village  of  Mackinac." 

This  is  claimed  to  be  insufficient,  but  we  think  there  is  no  mistak- 
ing the  land  intended  to  be  conveyed. 


b.    What  will  pass  as  appurtenant  to  the  lands  described. 

OGDEN  v.  JENNINGS. 

62  New  York,  526.  —  1S75. 

Trespass.  —  Defendant  pleaded  title  to  the  locus  in  quo  in  the 
trustees  of  the  school  district,  and  that  defendant  entered  thereupon 
by  order  of  one  of  the  trustees.  Judgment  for  plaintiff.  Defendant 
appeals. 

Allen,  J.  —  The  effect  and  extent  of  the  grant  from  Rufus  Jen- 
nings to  the  school  district  was,  by  the  charge  of  the  judge  at  the 
Circuit,  made  to  depend  upon  the  solution  of  the  question  of  fact, 
whether  the  use  of  the  locus  in  quo  was  necessary  to  the  district  in 
order  to  a  reasonable  enjoyment  of  the  granted  premises  for  school 
purposes,  rather  than  the  terms  of  the  grant  and  the  description 
therein  of  the  lands  granted.  The  defendants  prevailed  at  the 
Circuit,  and  had  judgment,  from  which  the  present  appeal  is 
brought,  upon  the  finding  of  the  jury  that  the  disputed  parcel  of 
land  was  a  necessary  adjunct  of  the  schoolhouse  as  a  playground  for 
the  children  attending  the  school  and  essential  to  a  reasonable 
enjoyment  of  the  property  conveyed.  If  this  playground  was  not 
included  within  the  description  of  the  premises  granted,  the  grant 
I  not  be  enlarged  by  the  necessities,  actual  or  supposed,  of  the 
grantee.  It  is  urged  Lint  if  the  reasonable  necessity  of  these 
grounds  was  established,  the  case  would  be  within  the  familiar  rule, 
that  by  the  grant  or  demise  of  a  house  or  messuage,  without  further 
ription,  the  curtilage  and  garden  belonging  to  it  passes  with  it  as 
part  and  parcel  of  it,  and  as  embraced  within  the  more  worthy  name 
of  the  principal  thing  granted  or  demised.  But  only  the  garden, 
tilage,  and  <  lose,  ad  joining  to  the  house  and  on  which  the  house  is 
built,  passes  under  the  general  description.     Other  lands,  although 


III.  4]  DEEDS.  IO83 

occupied  with  the  house,  will  not  pass  except  particularly  described. 
Smith  v.  Martin,  2  Saund.  400,  and  n.  2.  A  devise  of  a  house,  with 
its  appurtenances  or  lands  appertaining  thereto,  may  have  a  more 
extensive  effect  and  carry  other  land,  depending  upon  the  intent  of 
the  testator  as  manifested  by  the  entire  will.  Blackburn  v.  Edgley, 
1  P.  Win.  600;  Doe  v.  Collins,  2  T.  R.  498;  Buck  v.  Neiolon,  1  B.  & 
P.  53;   Bodenham  v.  Pritchard,  1  B.  &  C.  350. 

In  a  grant  or  demise,  the  addition  of  the  word  "  appurtenances  " 
will  not  vary  the  effect  of  the  grant  or  extend  it  so  as  to  include 
other  lands  not  parcel  of  the  house  and  close  mentioned.  Bcttis- 
worth's  Case,  2  Coke,  516.  The  rule  stated  does  not  result  from  the 
necessity  of  a  garden  or  curtilage  to  the  reasonable  occupation  and 
enjoyment  of  the  house,  but  from  the  fact  that  they  are  regarded  as 
in  fact  and  in  law  parcel  of  it,  and  as  technically  within  the  grant 
and  the  description  of  the  thing  granted.  If  a  grant  is  made  of  a 
house,  and  there  is  no  garden,  curtilage  or  close  annexed  to  and  a 
part  of  it,  the  grantee  cannot  claim,  as  incident  to  the  grant,  a  gar- 
den and  curtilage  such  as  twelve  men  may  say  is  reasonably  necessary 
to  the  proper  occupation  and  enjoyment  of  the  house  as  a  dwelling. 
Whether  a  garden  is  or  is  not  necessary  to  a  dwelling  is  wholly 
immaterial  in  interpreting  and  giving  effect  to  a  grant  of  the 
messuage  and  determining  what  lands  pass  by  the  conveyance.  So 
here,  whether  any  or  what  extent  of  playground  was  convenient  or 
necessary  in  connection  with  a  schoolhouse,  was  entirely  immaterial 
in  construing  and  determining  the  boundaries  of  the  grant. 

It  is  also  urged  that,  by  reason  of  the  reasonable  necessity  for 
these  lands  as  a  playground  for  the  pupils,  the  title  passed  as 
"appurtenant,"  and  under  the  clause  "  cum  pertinantes "  in  the 
deed;  and  the  case  in  which  easements  "  of  necessity  "  have  been 
sustained,  are  referred  to  by  the  court  below,  and  the  learned  coun- 
sel for  the  respondents. 

The  principle  was  carried  in  this  case  beyond  the  creation  of  a 
mere  easement,  and  was  made  to  effect  a  change  of  title  to  lands 
other  than  those  included  within  the  grant.  It  is  well  settled  that, 
in  a  deed,  the  word  appurtenances  will  not  pass  any  corporeal  real 
property,  title  to  lands,  but  merely  incorporeal  easements  or  rights 
and  privileges.  It  cannot  include  a  strip  of  land  adjacent  to  that 
granted.  A  title  to  land  will  not  pass  by  implication.  Jackson  v. 
Striker,  1  J.  Ch.  284;  Jackson  v.  Hathaway ',  15  J.  R.  447;  Buzzard 
v.  Capel,  SB.  &  C.  141;  s.  c.   in   Ex.   Ch.  6  Bing.  150. 

Easements  exist  as  appurtenant  to  a  grant  of  lands,  and  as  arising 
by  implication,  only  by  reason  of  a  necessity  to  the  full  enjoyment 
of  the  property  granted.     Nothing  passes  by  implication,  or  as  inci- 


IO84  TITLE   BY   DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

dent  or  appurtenant  to  the  lands  granted,  except  such  rights,  priv- 
ileges and  easements  as  are  directly  necessary  to  the  proper 
enjoyment  of  the  granted  estate.  Upon  the  grant  of  a  mill  every 
right  necessary  to  the  full  and  free  enjoyment  of  the  mill  passes  as 
incident  to  the  grant;  and  the  necessity  measures  the  extent  and 
duration  of  the  right.  When  the  necessity  ceases,  the  rights  result- 
ing from  it  cease.  It  must  be  an  actual  and  a  direct  necessity.  A 
mere  convenience  is  not  sufficient  to  create  or  convey  a  right  or 
easement,  or  impose  burdens  on  lands  other  than  those  granted,  as 
incident  to  the  grant.  In  all  cases  the  question  of  necessity  con- 
trols. Holmes  v.  Seely,  19  Wend.  507;  Nicholas  v.  Chamberlain,  Cro. 
Jac.  121;  Oakley  x.  Stanley,  5  Wend.  523;  Tabor  v.  Bradley,  18  N.  Y. 
109;  Le  Roy  ,v .  Piatt,  4  Paige,  77;  French  v.  Carhart,  1  Comst.  96; 
Voorhees  v.  Burchard,  55  N.  Y.  98;  N.  Y.  L.  Ins.  and  T.  Co.  v. 
Milnor,  1  Barb.  Ch.  353;  Warren  v.  Blake,  54  Maine,  276;  Pierce  v. 
Sellick,  18  Com.  321.  The  necessity  of  a  proper  head  of  water  for 
the  profitable  operation  of  a  mill,  a  mill-yard  to  a  saw-mill,  of  a  way 
of  access  in  order  to  the  occupation  of  any  granted  premises,  is 
palpable,  but  the  necessity  of  a  playground  or  an  open  court,  except 
for  light  and  air,  about  a  schoolhouse  is  not  apparent.  There  was 
no  evidence  that  appurtenances  of  that  character  were  either  usual 
or  necessary  for  any  purpose  connected  with  the  proper  conduct  of 
the  school,  or  to  the  health  or  welfare  of  the  children.  That  such 
appendages  are  not  a  universal  necessity  is  very  evident.  Indeed, 
there  was  no  evidence  that  a  space  for  a  playground  was  even  a 
convenience  for  any  proper  school  purpose.  It,  doubtless,  may  be 
a  source  cf  pleasure  to  the  children,  but  that  will  not  suffice  to 
create  an  easement  by  implication,  or  as  appurtenant  to  the  granted 
lands.  The  law  will  not  imply  that  a  space  of  ground  set  apart  for 
the  exercise  and  diversion  of  the  children,  is  a  necessity  for  a  coun- 
try  schoolhouse,  or  that  for  all  recognized  school  purposes  the  dis- 
trict may  not  have  and  enjoy  the  schoolhouse  and  premises  fully 
without  such  an  adjunct,  and  it  would  require  very  cogent  evidence 
to  establish  a  right  to  such  grounds  as  passing  by  implication  and 
as  an  incident  to  a  conveyance  of  a  schoolhouse.  Here  there  was 
no  evidence  to  warrant  the  submission  of  the  necessity  of  such  an 
im  idem  to  the  jury. 

It  was  error  for  the  judge  to  submit  it  as  the  pivotal  question  of 
fact  in  tin-  art  ion,  for  two  reasons:  1st.  It  was,  under  the  circum- 
stances, an  immaterial  question,  and  neither  the  cause  of  action  or 
defense  properly  depended  upon  its  determination.  And  2d.  There 
was  no  evidence  that  am-  necessity  existed  (<>r  the  possession  by  the 
district  of  this  or  any  other  parcel  of  ground  as  a  playground.      This 


III.  4-]  DEEDS.  IO85 

would  lead  to  a  reversal  of  the  judgment  unless  on  examination  of 
the  grant,  in  connection  with  the  evidence  and  the  plaintiff's  title, 
it  is  evident  that  the  action  cannot  be  maintained.1 


(5.)  Delivery  and  Acceptance  of  the  Deed, 
MILLER  v.  MEERS. 
155  Illinois,  284.. —  1895. 

Plaintiffs  bring  this  action  to  get  possession  of  the  deed 
described  in  the  opinion,  and  to  establish  and  confirm  their  title  to 
the  property  described  in  the  deed. 

Carter,  J.  —  *  *  *  But  the  question  still  arises  whether  or 
not,  after  considering  all  proper  evidence  and  rejecting  all  held  to 
be  improper,  the  decree  of  the  trial  court  can  be  sustained.  "  No 
particular  form  or  ceremony  is  necessary  to  constitute  a  delivery  " 
of  a  deed.  "  It  may  be  by  acts  without  words,  or  by  words  without 
acts,  or  by  both.  Anything  which  clearly  manifests  the  intention 
of  the  grantor  and  the  person  to  whom  it  is  delivered,  that  the  deed 
shall  presently  become  operative  and  effectual,  that  the  grantor 
loses  all  control  over  it,  and  that  by  it  the  grantee  is  to  become 
possessed  of  the  estate,  constitutes  a  sufficient  delivery.  The  very 
essence  of  the  delivery  is  the  intention  of  the  party."  Bryan  v. 
Wash,  2  Oilman,  557;  Cline  v.  Jones,  in  111.  563,  and  cases  there 
cited.  It  is  well  settled  that  the  law  makes  stronger  presumptions 
in  favor  of  the  delivery  of  deeds  in  cases  of  voluntary  settlements, 
especially  in  favor  of  infants,  than  in  ordinary  cases  of  bargain  and 
sale.  The  acceptance  by  the  infant  will  be  presumed.  And  it  is 
even  held  that  an  instrument  may  be  good  as  a  voluntary  settlement, 
though  it  be  retained  by  the  grantor  in  his  possession  until  his 
death,  provided  the  attending  circumstances  do  not  denote  an 
intention  contrary  to  that  appearing  upon  the  face  of  the  deed. 
Bryan  v.  Wash,  and  Cline  v.  Jones,  supra;  Reed  v.  Douthit,  62  111. 
348;  Walker  v.  Walker,  42  111.  311;  Otis  v.  Beckwith,  49  111.  121; 
Masterson  v.  Cheek,  23  111.  72;  Soaverbye  v.  Arden,  1  Johns.  Ch.  242; 
Bnnn  v.  Winthrop,  Id.  329;  Scrugham  v.  Wood,  15  Wend.  545;  Perry 
on  Trusts,  §  103;  Urann  v.  Coates,  109  Mass.  581;  Thompkins  v. 
Wheeler,  16  Pet.  114.  And  it  was  said  in  Weber  v.  Christen,  121 
111.  91,  that  "  the  crucial  test,  in  all  cases,  is  the  intent  with  which 


'The  transfer  of  land  carries  with  it  all  easements  appurtenant  thereto.  Kuhl- 
mau  v.  Hechl,  supra,  p.  S19.  —  Ed. 


1086  TITLE    BY    DERIVATIVE   ACQUISITION.      [PT.  VI.  CM.  II. 

the  act  or  acts  relied  on  as  the  equivalent  or  substitute  for  actual 
delivery  were  done."  The  deed  in  question  must  have  taken  effect 
at  once  upon  its  acknowledgment  and  delivery  to  Grinton,  or  not  at 
all,  and  the  real  question  is,  with  what  intention  was  the  deed  placed 
in  the  hands  of  Grinton?  Blackman  v .  Preston,  123  111.  381;  Hayes 
x.Bov/an,  141  111.  400;  Bovee  v.Hinde,  135  111.  137;  and  cases  supra. 
Nothing  was  said  by  the  grantor  at  the  time  to  indicate  an  intention 
that  the  deed  should  not  take  effect.  His  instructions  were  to  take 
the  deed,  and  take  care  of  it  —  whether  for  himself  or  the  grantees, 
he  did  not  say.  The  grantees  were  his  nephews  and  nieces,  seven 
in  number,  the  adults  living  in  different  places,  and  the  minors  with 
their  father,  his  brother,  on  the  premises  conveyed.  Under  the  cir- 
cumstances it  may  have  been  a  question  of  some  difficulty,  in  his 
mind,  to  determine  to  whom  the  deed  should  be  delivered.  Instead 
of  delivering  it  to  either  of  the  grantees  he  could  lawfully  deliver  it 
to  a  third  person  for  their  benefit.  He  did  deliver  it  to  a  third  per- 
son, and  whether  for  their  benefit  or  only  as  custodian  for  himself, 
is  a  question  of  fact  to  be  determined  from  the  evidence.  Defend- 
ants insist  that  Grinton  was  the  grantor's  clerk,  and  that  his  posses- 
sion was  the  possession  of  the  grantor.  It  is  not  clear  from  the 
evidence  what  the  business  relations  were  between  Grinton  and  Mar- 
tin C.  Bissel.  Grinton  testified  that  he  was  not  employed  by  the 
day,  week,  month,  or  year;  that  he  always  had  a  partnership  con- 
tract with  Bissel  in  the  profits,  and  that  that  was  the  case  when 
these  papers  were  executed;  that  the  "  partnership  papers,"  as  wit- 
ness called  them,  as  well  as  his  individual  papers  and  those  of  Martin 
C.  Bissel,  were  all  kept  in  the  safe.  Whether  he  was  responsible 
for  the  losses  and  expenses  of  the  business  is  not  disclosed  by  the 
evidence.  From  the  evidence  given  he  may  have  been  a  partner 
in  business  with  Bissel,  or  merely  an  employee  receiving  a  share  of 
the  profits  as  a  measure  of  his  pay  for  his  services.  In  Lock-wood  v. 
Doane,  107  111.  235,  this  court  held  that:  "Where  parties  agree  to 
share  in  the  profits  of  business,  the  law  will  infer  a  partnership 
between  them  in  the  business  to  which  the  agreement  refers;  but 
this  presumption  may  be  disproved.  It  is  prima  facie  evidence,  and 
will  control  until  rebutted."  Nichoff  v .  Dudley,  40  111.  406.  Under 
the  evidence  and  these  authorities,  it  would  seem  that  the  relation 
between  Grinton  and  Martin  C.  bissel,  at  the  time  of  the  transac- 
tion in  question,  must  be  treated  as  that  of  a  partnership.  If  so, 
the  transaction  not  pertaining  t<>  their  partnership  affairs,  posses- 
sion of  the  deed  by  Grinton  was  not,  by  virtue  of  their  relation,  the 
>-ssii»n  of  the  grantor,  but  was  the  possession  of  a  third  person. 
Grinton   took   this  deed,  and   placed  it  in  an  envelope,  and  put  it  in 


III.  4.]  DEEDS.  IO87 

the  safe,  and  kept  it  in  his  possession  for  15  years  thereafter,  until 
the  trial  in  the  Circuit  Court.  Had  Martin  intended  to  retain  con- 
trol of  it,  he  could  as  well  have  placed  it  with  his  own  papers  in  the 
safe.  This  he  did  not  do,  nor  did  he  ever  assume  or  assert  any  con- 
trol over  the  deed  afterwards.  Grinton  was  a  notary  public,  and  as 
such  took  the  acknowledgment.  By  this  acknowledgment  the 
grantors  acknowledged  that  they  signed,  sealed,  and  delivered  the 
instrument  as  their  free  and  voluntary  act,  for  the  uses  and  pur- 
poses expressed  in  it.  Whether,  on  an  issue  as  to  the  delivery  of  a 
deed,  otherwise  left  in  doubt  by  the  proofs,  such  an  acknowledg- 
ment would  be  sufficient  evidence  of  a  delivery,  it  is  not  necessary 
in  this  case  to  decide  for,  as  we  conceive,  the  intention  of  the 
grantor  is  otherwise  disclosed  by  the  evidence  with  sufficient  clear- 
ness, and  this,  too,  whether  Grinton  was  a  partner  or  a  mere 
employee  of  Martin  C.  Bissel.  We  find  nothing  in  the  attending 
circumstances  denoting  an  intention  on  the  part  of  the  grantor  that 
the  deed  should  not  take  effect;  but,  on  the  contrary,  there  is  suffi- 
cient evidence  that  he  intended  the  deed  to  become  presently 
effective.  He  at  the  same  time  executed  and  delivered  to  his 
brother,  the  father  of  plaintiffs  in  error,  and  to  his  brother's  wife, 
who  were  already  in  possession  of  the  property,  a  life  lease  therefor. 
The  deed  was,  on  its  face,  made  subject  to  the  lease.  By  the  lease 
the  lessees  were  required  to  insure  the  property  for  the  benefit,  in 
part,  of  themselves  and  in  part  of  the  grantees.  The  lease  recog- 
nized the  grantees  as  the  owners  of  the  property,  and  for  breach  of 
any  of  the  covenants  in  the  lease  they  were  authorized  to  declare 
the  term  ended,  and  to  enter  and  expel  the  lessees.  The  lease  and 
deed  were  executed  together,  and  were  parts  of  the  same  transac- 
tion whereby  Martin  C.  Bissel  disposed  of  all  his  interest  in  the  pos- 
session of  and  title  to  the  property.  He  reserved  nothing  in  either 
the  lease  or  deed.  The  delivery  of  the  lease  to,  and  the  possession 
of  the  property  by,  William,  are  not  disputed.  The  right  to  declare 
a  forfeiture  and  to  re-enter  was  not  reserved  to  the  lessor,  but  to 
plaintiffs  in  error,  the  grantees  in  the  deed.  It  would  seem,  from 
this  provision  that,  at  the  time  of  the  transaction  Martin  C.  Bissel 
intended  that  the  title  should  vest  in  appellants,  and  that  he  under- 
stood it  did  so  vest.  Then,  again,  it  was  clearly  proved  that  after 
William  had  left  the  property,  and  Martin  had  taken  possession  and 
made  repairs,  he  leased  it,  paid  the  taxes,  and,  to  all  outward  appear- 
ances, acted  as  the  owner,  he  told  two  witnesses  that  the  prop- 
erty belonged  to  his  brother's  children,  and  that  he  could  not,  for 
that  reason,  sell  or  dispose  of  it,  but  would  attend  to  it  —  evidently 
meaning    that    he    was    taking    care    of    it    for  his  brother  and  his 


1088  TITLE   BY   DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  I. 

brother's  children.  It  may  be  that  after  the  lapse  of  years  he  con- 
cluded that  he  was  entitled  to  and  would  retain  the  property  as  his 
own.  In  other  words,  he  may  have  changed  his  mind  in  reference 
to  making  a  gift  of  the  property  to  these  beneficiaries,  honestly  con- 
cluding that  under  the  circumstances  he  had  a  right  to  do  so;  but  if 
he  did  so  conclude  he  was  simply  mistaken  as  to  the  legal  effect  of 
what  had  been  done.  The  facts  are  somewhat  similar  to  those  in 
Douglas  v.  West,  140  111.  461,  31  N.  E.  403.  See  also  Winterbottom 
v.  Pattison,  152  111.  334,  38  N.  E.  1050.  We  are  satisfied  from  the 
evidence  that  Martin  C.  Bissel  intended  that  the  deed  should  take 
effect  when  he  executed  and  acknowledged  it  and  delivered  it  to 
Grinton,  and  it  must  be  so  held.  The  decree  of  the  Circuit  Court  is 
reversed,  and  the  cause  remanded,  with  directions  to  dismiss  the 
cross-bill,  and  to  enter  a  decree  in  accordance  with  the  prayer  of  the 
bill  of  plaintiffs  in  error.     Reversed  and  remanded. 


Coke,  J.,  in  TUTTLE  v.  TURNER. 
28  Texas,  759.  —  1866. 

A  deed  takes  effect  only  from  the  date  of  its  delivery,  which  may 
be  either  actual  or  constructive.  It  is  essential  to  the  operative 
force  and  validity  of  a  deed,  if  not  actually  delivered  to  the  grantee 
or  his  agent  authorized  to  receive  it,  to  prove  notice  to  him  of  its 
execution,  and  such  additional  circumstances  as  will  afford  a  reason- 
able presumption  of  his  acceptance  of  it.  The  presumption  that  a 
party  will  accept  a  deed  because  it  is  beneficial  to  him,  it  is  said,  will 
never  be  carried  so  far  as  to  consider  him  as  having  accepted  it.  4 
Kent  Com.  §  454;  Hulick  v.  Scovill,  4  Gilm.  159.  But  possession  of  a 
deed  by  the  grantee  raises  a  presumption  of  its  due  delivery. 
Chandler  v.  Temple,  4  Cush.  285;  Trust  Co.  v.  Cole,  4  Fla.  359.  This 
presumption  may  be  rebutted  by  proof  to  the  contrary. 


The  Chancellor  in  ARNOLD  v.  PATRICK. 

(>.  Paige's  Chancery,  310.  —  1837. 

FROM  the  facts  Stated  in  the  answer  of  Arnold,  in  connection  with 
those  stated  in  the  further  answer  as  having  been  derived  from  the 
information  of  J.  Ricketson  subsequent  to  the  assignment  of  the 
mortgage,  which  under  the  stipulation  in  this  case  must  be  taken  to 
b<  ■  orrect,  1  am  inclined  t<>  think  that  there  was  such  a  delivery  of 
tin-  deed  oi  August,  1829,  as  was  sufficient  at  law  to  pass  the  legal 


III.  4]  DEEDS.  IO89 

title  to  the  premises  in  question;  subject,  however,  in  equity,  to  the 
payment  of  the  unpaid  purchase  money.  It  is  evident  from  the 
facts  stated  that  it  must  have  been  the  intention  of  both  parties  that 
if  the  purchase  money  was  paid  the  deed  should  take  effect  without 
any  new  delivery;  as  the  grantee  had,  under  the  agreement  of  1825 
an  unquestionable  right  to  a  conveyance  of  the  premises  upon  pay- 
ment of  the  amount  due.  Had  this  deed  been  intrusted  to  the  clerk 
merely  as  an  escrow  to  be  delivered  to  George  upon  condition  that 
the  purchase  money  was  actually  paid  to  the  grantor  within  a  certain 
prescribed  time,  but  not  otherwise,  the  legal  title  would  still  have 
remained  in  the  grantor,  although  the  deed  might  have  gotten  into 
the  hands  of  the  grantee,  without  a  performance  of  the  condition 
upon  which  it  was  to  take  effect.  That  does  not  appear  to  have 
been  the  case  here;  but  the  parties  acted  upon  the  erroneous  suppo- 
sition that  the  deed  might  be  delivered  to  the  grantee  himself,  upon 
the  condition  that  it  should  not  be  proved  and  recorded  if  the  pur- 
chase money  was  not  paid,  and  that  the  legal  title  would  not  pass 
by  such  a  delivery.  The  legal  rule,  however,  is,  as  was  insisted  upon 
by  the  counsel  for  Patrick,  that  a  deed  or  any  other  sealed  instru- 
ment cannot  be  delivered  to  the  grantee  or  obligee  himself  as  an 
escrow,  to  take  effect  upon  a  condition  not  appearing  upon  the  face 
of  such  deed  or  instrument;  but  that  if  so  delivered  it  becomes 
absolute  at  law.  Coke  Litt.  36,  a;  Touchstone,  59;  Thoroughgood1  s 
Case,  9  Coke's  Rep.  137,  a. 


PRICE  v.  PITTSBURGH,  FORT  WAYNE  AND  CHICAGO 
RAILROAD  CO. 

34  Illinois,  13.  —  1864. 

Breese,  J.  —  The  principal  point,  however,  which  is  made  in  the 
case  is  as  to  the  right  of  the  plaintiffs  below  to  recover  at  all  for  use 
and  occupation.  Of  this  we  think  there  can  be  no  doubt.  By 
express  agreement,  when  the  plaintiffs  purchased  the  lots  of  the 
former  owner,  under  whom  the  defendant  held  as  tenant  by  the 
year,  it  was  agreed  and  understood,  if  the  plaintiffs  consummated 
the  trade  by  delivering  the  bonds  and  mortgages  by  the  fall  of  i860, 
the  deeds  they  had  executed  on  and  prior  to  the  first  day  of  May, 
i860,  and  placed  in  the  hands  of  the  attorney  and  solicitor  of  the 
plaintiffs,  were  to  take  effect  and  be  in  force  on  the  first  day  of  May, 
i860.  The  defendant  insists  that  the  delivery  of  these  deeds  to  the 
solicitor  of  the  company,  was,  in   effect,  the  same  as  a  delivery  to 

LAW  OF  PROP.  IN  LAND  —  69 


IO9O  TITLE    BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

any  third  person  not  connected  with  the  company;  that  they  were 
delivered  to  a  stranger,  and  were,  therefore,  escrows;  and  being  so, 
the  title  to  the  lots  remained  with  the  grantors,  subject  to  be  trans- 
ferred on  the  delivery  of  the  bonds  and  mortgages.  It  is  generally 
true,  and  is  the  old  doctrine  of  the  books,  that  if  a  deed  is  delivered 
'to  a  stranger  to  be  delivered  to  the  grantee,  on  the  performance  by 
him  of  certain  conditions,  and  they  are  fully  performed,  and  the 
deed  delivered,  that  the  deed  takes  effect  from  the  second  delivery, 
and  to  be  considered  the  deed  of  the  party  from  that  time. 

This  rule,  it  is  said,  does  not  apply  where  justice  requires  a  resort 
to  fiction.     4  Kent's  Com.  454. 

The  instances  usually  put  are  when  the  grantor,  after  the  deposit 
of  the  deed  as  an  escrow,  dies,  or  becomes  insane,  or,  if  a  feme  sole, 
marries  before  the  grantee  has  performed  the  conditions.  In  such 
cases  the  law  will  make  the  second  delivery  relate  back  to  the  time 
of  the  deposit  of  the  escrow.  1  Shep.  Touch.  123.  What  effect  the 
agreement  of  the  parties  should  have  upon  the  time  of  the  delivery 
is  not  there  discussed,  nor  is  it  said  these  are  the  only  instances  in 
which  there  shall  be  this  relation  back. 

The  case  of  Lessee  of  Shirley  v.  Ayres,  14  Ohio,  307,  was  an  eject- 
ment, where  it  was  held  a  deed  delivered  as  an  escrow  should  take 
effect  on  its  first  delivery,  on  the  performance  of  the  condition,  if  it 
was  necessary  to  protect  the  grantee  or  those  claiming  under  him 
against  intervening  rights. 

The  case  of  Beekman  v.  Frost,  18  Johns.  543,  in  the  Court  of 
Errors,  holds  the  same  doctrine.  A  very  strong  case  is  to  be  found 
in  9  Mass.  307,  Hatch  et  al.  v.  Hatch  et  a/.,  where  the  court  held  that 
a  writing  delivered  to  a  stranger  for  the  use  and  benefit  of  the 
grantee,  to  have  effect  after  a  certain  event,  or  the  performance  of 
some  condition,  may  be  delivered  either  as  a  deed  or  as  an  escrow. 
The  distinction,  however,  the  court  say,  being  almost  entirely 
nominal  when  we  consider  the  rules  of  decision  which  have  been 
resorted  to  for  the  purpose  of  effectuating  the  intentions  of  the 
grantor  or  obligor  in  some  cases  of  necessity.  If  delivered  as  an 
escrow,  and  not  in  name  as  a  deed,  it  will,  nevertheless,  be  regarded 
and  construed  as  a  deed  from  the  first  delivery,  as  soon  as  the  event 
happens,  or  the  consideration  is  performed  upon  which  the  effect 
had  been  suspended,  if  this  construction  should  be  then  necessary 
in  furtherance  <>f  tin-  lawful  intentions  of  the  parties. 

The  1  is'-  of  //,///  v.  //arris,  5  [red.  Eq.  R.  303,  is  to  the  same 
effect. 

The  question  in  this  <;isc  was,  whether  a  deed  took  effect  on  the 
se<  -mkI  day  "f  March,  the  date  of  its  execution,  or  on  the  tenth,  the 


III.  4-]  DEEDS.  IO9I 

day  on  which  full  payment  for  the  land  was  paid.  The  trade  was 
made  on  the  second  of  March,  on  which  day  part  of  the  price  was 
paid,  and  the  vendor  was  to  make  a  deed  and  hand  it  to  one  Mor- 
gan, to  be  by  him  handed  to  the  vendee  when  he  paid  the  price. 
On  that  day  the  vendor  made  the  deed  and  handed  it  to  Morgan, 
Afterwards,  on  the  tenth  of  March,  the  vendee  paid  Morgan  the 
balance  due  and  received  the  deed.  The  purpose,  the  courts  say, 
for  which  the  deed  was  delivered  to  a  third  party  instead  of  being 
delivered  directly  to  the  plaintiff,  was  merely  to  secure  the  payment 
of  the  price.  When  that  was  paid  the  plaintiff  had  a  right  to  the 
deed.  The  purpose  for  which  it  was  put  into  the  hands  of  a  third 
person  being  accomplished,  the  plaintiff  then  held  the  deed  in  the 
same  manner  he  would  have  held  it  if  it  had  been  delivered  to  him 
in  the  first  instance.  This  was  the  intention,  and  we  can  see  no 
good  reason  why  the  parties  should  not  be  allowed  to  effect  their 
end  in  this  way.  Though  the  plaintiff  might  have  avoided  the  pur- 
chase, his  rights  cannot  be  affected  by  that  fact. 

The  court  remarks  if  the  vendor  had  died  after  the  delivery  to  the 
third  person,  and  before  the  payment,  the  vendee,  upon  making  the 
payment,  would  have  been  entitled  to  the  deed,  and  it  must  have 
taken  effect  from  the  first  delivery,  or  it  could  not  have  taken  effect 
at  all.  The  intention  was,  it  should  be  the  deed  of  the  vendor  from 
the  time  it  was  delivered  to  the  third  person,  provided  the  condition 
was  complied  with.  If  this  intention  is  bona  fide,  and  not  a  contriv- 
ance to  interfere  with  the  right  of  creditors,  the  deed  must  be 
allowed  to  take  effect.  The  court  conclude  by  saying,  we  are  satis- 
fied from  principle  and  from  a  consideration  of  the  authorities,  that 
when  a  paper  is  signed  and  sealed  and  handed  to  a  third  person  to 
be  handed  to  another,  upon  a  condition  which  is  afterwards  com- 
plied with,  the  paper  becomes  a  deed  by  the  act  of  parting  with  the 
possession,  and  takes  effect  presently,  without  reference  to  the  pre- 
cise words  used,  unless  it  clearly  appears  to  be  the  intention  that  it 
should  not  then  become  a  deed. 

In  the  case  before  us  the  proof  was  that  the  deeds  were  delivered, 
as  deeds,  to  the  solicitor  of  the  company,  with  the  understanding, 
when  the  bonds  and  mortgages  of  the  railroad  company  to  be  given 
in  payment  of  the  lots,  and  which  had  to  be  executed  in  a  distant 
state,  were  returned  from  there,  the  deeds  were  to  take  effect  as  of 
May  1,  i860;  and  if  the  bonds  were  not  returned,  the  deeds  were 
not  to  take  effect  at  all;  that  the  bonds  were  not  returned  until  the 
fall  of  i860,  and  that  he,  the  witness,  should  not  have  delivered  or 
recorded  the  deeds  until  the  bonds  came;  that  the  bonds  and  mort- 


IO92  TITLE    BY    DERIVATIVE   ACQUISITION.      [PT.  VI.  CH.  II. 

gages  are  dated  and  bear  interest  from  May  1,  i860,  and  interest  has 
been  paid  on  them  from  that  date. 

It  is  a  case  quite  like  the  case  of  Hatch  v.  Hatch,  decided  by  the 
Supreme  Court  of  Massachusetts,  and  the  case  in  Iredell  decided  by 
the  Supreme  Court  of  North  Carolina. 

In  all  such  cases  the  intention  of  the  parties  is  to  be  considered, 
and  it  seems  quite  manifest  these  parties  intended  those  deeds 
should  have  effect  from  the  day  of  their  execution,  if  the  conditions 
were  performed;  and  they  were  fully  performed. 

But  were  these  deeds  delivered  to  a  stranger,  so  as  to  constitute 
an  escrow?  The  proof  is,  they  were  delivered  to  the  solicitor  of  the 
company.  Now,  since  a  corporation  can  only  act  through  its  officers 
and  agents,  a  delivery  of  a  deed  to  one  of  its  officers  would  be  a 
delivery  to  the  company,  and  therefore  would  take  effect  immedi- 
ately. Foley  v.  Cogwill,  5  Blackf.  20;  War rail  v.  Munn  ct  al.,  1  Seld. 
N.  Y.   229. 

The  case  cited  by  appellant  from  4  Fla.  359,  Southern  Life  Ins.  and 
Trust  Co.  v.  Cole,  holds,  that  a  delivery  to  an  officer  or  servant  of  a 
corporation,  is  delivery  to  the  corporation,  with  the  addition  that 
such  delivery  is  for  the  use  and  benefit  of  the  corporation,  and  with 
an  intent  to  pass  an  absolute  property  or  interest  in  the  deed 
delivered.  That  court  did  not  think  there  was  such  a  personal 
identity  between  the  corporation  and  its  officers,  that  a  deed  may 
not  be  placed  in  the  hands  of  the  latter  as  an  escrow  until  the  per- 
formance of  some  condition.  The  court,  however,  in  that  case 
refused  to  permit  the  deed  to  take  effect  in  favor  of  the  company 
from  its  date,  because  it  would  do  wrong  and  injustice  to  the  rights 
of  other  parties. 

The  question  of  intention  in  the  case  before  us  was  left  to  the 
jury,  and  they  have  found  the  deeds,  by  agreement  of  the  parties, 
were  to  take  effect  on  the  first  day  of  May,  i860,  and  it  is  not  pre- 
tended any  rights  or  interests  have  intervened  to  be  injuriously 
affected  by  such  an  agreement.  Justice  is  done  by  it,  because  the 
plaintiffs  have  paid  the  interest  on  these  bonds  and  mortgages  from 
the  first  dav  of  May,  i860,  at  which  date,  all  claim  and  interest  of 
their  vendors  ceased,  and  so  ceasing  the  plaintiffs  became  entitled  to 
tin-  rents  and  profits  of  the  tenancy  then  existing  and  theretofore 
created.  \  suit  brought  by  these  vendors,  for  the  rent  of  these 
premises,  could  not,  under  the  facts  proved,  be  maintained.  They 
sold  the  premises  on  a  condition  which  has  been  fully  performed 
with  an  express  agreement,  when  performed,  their  deed  should  take 
effeel  "ii  the   first  day  of   May.     They  could  not  afterwards  retract 


III.  4-]  DEEDS.  IO93 

this,  nor  could  any  other  person,  except,  perhaps,  creditors,  gainsay 
the  validity  of  such  an  agreement  in  the  absence  of  fraud.  We  are 
inclined  to  think  the  delivery  of  these  deeds,  under  the  circum- 
stances, was  absolute  in  the  first  instance.1 

1  The  following  quotations  appear  in  the  argument  of  counsel  at  p.  28  of  the 
official  report: 

"  The  fifth  thing  required  in  every  well-made  deed  is,  that  there  be  a  delivery 
of  it.  And  for  this  it  must  be  known  that  the  delivery  is  either  actual,  i.  e.,  by 
doing  something  and  saying  nothing  or  else  verbal  i.  e.,  by  saying  something  or 
doing  nothing,  or  it  may  be  by  both;  and  either  of  these  may  make  a  good 
delivery  and  a  perfect  deed. 

*  *  *  "And  a  deed  may  be  delivered  by  the  party  himself  that  doth  make 
it,  or  by  any  other  by  his  appointment  or  authority,  precedent,  or  assent,  or 
agreement  subsequent,  for  omnis  ratihabitio  mandata  cquipar.Uur.  And  so  also  a 
deed  may  be  delivered  to  the  party  himself  to  whom  it  is  made,  or  to  any 
other  by  sufficient  authority  from  him;  or  it  may  be  delivered  to  any  stranger 
for  and  in  the  behalf  and  to  the  use  of  him  to  whom  it  is  made,  without 
authority.     *     *     * 

"  The  delivery  of  a  deed  as  an  escrow  is  said  to  be  when  one  doth  make  and 
seal  a  deed  and  deliver  it  unto  a  stranger,  until  certain  conditions  be  performed, 
and  then  to  be  delivered  to  him  to  whom  the  deed  is  made,  to  take  effect  as  his 
deed.  But  in  this  case  two  conditions  must  be  heeded:  1.  That  the  form  of 
words  used  in  the  delivery  of  a  deed  in  this  manner  be  apt  and  proper.  2.  That 
the  deed  be  delivered  to  one  that  is  a  stranger  to  it,  and  not  to  the  party  himself 
to  whom  it  is  made."     *     *     * 

"  But  when  the  conditions  are  performed  and  the  deed  is  delivered  over,  then 
the  deed  shall  take  as  much  effect  as  if  it  were  delivered  immediately  to  the 
party  to  whom  it  is  made,  and  no  act  of  God  or  man  can  hinder  or  prevent  this 
effect  then,  if  the  party  that  doth  make  it  be  not  at  the  time  of  making  thereof 
disabled  to  make  it.  He,  therefore,  that  is  intrusted  with  the  keeping  and 
delivery  of  such  a  writing,  ought  not  to  deliver  it  before  the  conditions  be  per 
formed;  and  when  the  conditions  be  performed  he  ought  not  to  keep  it,  but 
deliver  it  to  the  party.  For  it  may  be  made  a  question  whether  the  deed  be  per- 
fect before  he  hath  delivered  it  over  to  the  party  according  to  the  authority 
given  him.  Howbeit  it  seems  that  the  delivery  is  good,  for  it  is  said  in  this 
case  that  if  either  party  to  the  deed  die  before  the  conditions  be  performed,  and 
the  conditions  be  after  performed,  that  the  deed  is  good;  for  there  was  traditio 
inchoata  in  the  lifetime  of  the  parties;  and  postea  consuiiimata  existens  by  the 
performance  of  the  conditions  it  taketh  its  effect  by  the  first  delivery,  without 
any  new  or  second  delivery;  and  the  second  delivery  is  but  the  execution  and 
consummation  of  the  first  delivery."  —  Ed. 


1094  TITLE   BY   DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

c.   Covenants  in  conveyances.1 

(i.)  Covenants  for  Title. 

(<:.)   Covenant  of  seisin. 

MOTT  v.  PALMER, 
i  New  York,  564.  —  1848. 
\_Reported  herein  at  p.  286.] 


MITCHELL  v.  WARNER. 

5  Connecticut,  497.  —  1825. 

Hosmer,  Ch.  J.  —  The  case  made  by  this  motion  presents  two 
questions  for  determination. 

The  first  is,  whether  the  plaintiff,  claiming  to  be  the  assignee  of 
the  covenant  of  seisin    can  maintain  an  action  on  that  covenant. 

This  covenant,  from  its  nature,  is  broken  instantaneously  on  the 
delivery  of  the  deed,  or  it  is  never  broken.  It  runs  in  the  words  of 
the  present  tense,  and  asserts,  that  the  grantor  is  well  seised.  Now, 
if  he  is  well  seised  according  to  his  covenant,  the  agreement  is  ful- 
filled; and  if  he  is  not  well  seised,  the  covenant  is  false,  and 
immediately  broken.  It  follows  from  this,  that  it  is  a  personal 
covenant,  which,  most  clearly,  never  runs  with  the  land,  and  that 
the  grantee,  in  whose  time  the  breach  existed,  can  alone  sue  upon 
it;  for,  after  a  breach  the  cause  of  action  can  never  be  assigned.  It 
would  be  the  assignment  of  a  chose  in  action,  which  the  common 
law  will  not  permit.  That  the  covenant  of  seisin,  if  false,  is  broken 
as  soon  as  it  is  made,  appears  from  Shep.  Touch.  170;  from  Bick- 
fordv.  Page,  2  Mass.  Rep.  460;  from  Marston  v.  Hobbs,  2  Mass. 
Ri  11.  437;  from  Bennett  x.  Irwin,  3  Johns.  Rep.  365:  from  Abbotts. 
Allen,  14  Johns.  Rep.  253;  from  Greenby  et  al.  v.  Wilcocks,  2  Johns. 
Rep.  1  ;  from  Pollard  et  al.  v  Dwight  et  al.,  4  Cranch.  430;  from  1 
Swift's  Dig.  370;  and  from  Mitchell  v.  //trie//,  4  Conn.  Rep.  495. 
From  its  nature,  it  docs  not  run  with  the  land,  as  none  but  real 
covenants  do;  and  these  are  always  suspended  on  some  act  posterior 
to  the  delivery  of  the  (\<^t(\.  Hence,  as  I  have  said  before,  having 
been  broken,  the  covenant  has  become  a  chose  in  action,  and  there- 
fore cannot  be  assigned.  1  Swift's  Dig.  370.  In  Bickford  \ .  Page, 
2  Mass.   Rep.  455,  it  was  said   by  the  court:      "  This  covenant  being 

I   11  th(  old  forms  of  covenants,  with  short  statutory  equivalents,  see  N.  Y. 
K.  P.  I      ;  223.       Ed. 


III.  4.]  COVENANTS.  IO95 

broken  before  the  release  was,  at  that  time,  a  mere  chose  in  action, 
and  unassignable."  The  court,  in  the  case  of  Greenby  et  al.  v.  Wil- 
cocks,  2  Johns.  Rep.  1,  determined  that  the  assignee  of  a  covenant 
of  seisin  could  not  recover.  The  opinion  was  delivered  by  Spencer, 
J.,  in  which  he  says:  "  Choses  in  action  are  incapable  of  assign- 
ment at  the  common  law;  and  what  distinguishes  these  covenants, 
broken  the  instant  they  were  made,  from  an  ordinary  chose  in  action? 
The  covenants,  it  is  true,  are  such  as  run  with  the  land;  but  here 
the  substratum  fails,  for  there  was  no  land  whereof  the  defendant 
was  seised,  and  of  a  consequence,  none  that  he  could  alien;  the  cove- 
nants are,  therefore,  naked  ones,  uncoupled  with  a  right  to  the  soil." 
The  same  point  was  adjudged  as  far  back  as  the  reign  of  Queen  Eliza- 
beth, in  Lewes  v.  -Ridge,  Cro.  Eliz.  863;  and  the  case,  so  far  as  I  can 
find,  has  never  been  overruled.  The  principle  settled  in  that  case,  was 
this;  that  an  assignee  shall  not  have  an  action  upon  a  breach  of 
covenant  before  his  own  time.  The  same  principle  was  recognized 
in  Marston  v.  Hobbs,  2  Mass.  Rep.  439;  in  the  determination  of 
which  case,  it  was  said  by  Parsons,  Ch.  J.,  when  delivering  the 
opinion  of  the  court;  that  "  no  estate  passed,  to  which  these  cove- 
nants (1.  e.,  of  seisin  and  right  to  convey)  could  be  annexed,  because 
in  fact  broken  before  any  assignment  could  be  made,  they  were 
choses  in  action,  and  not  assignable."  In  Com.  Dig.  tit.  Covenant, 
B.  3,  it  is  asserted,  that  "  covenant  does  not  lie  by  an  assignee,  for 
a  breach  done  before  his  time."  It  cannot  run  with  the  land;  for 
nothing  having  been  conveyed,  what  land  is  there  for  it  to  run  with? 
To  the  same  effect  is  Lucy  v.  Levington,  2  Lev.  26,  s.  c.  1  Vent.  175, 
in  which  it  was  decided,  that  for  a  breach  of  the  covenant  of  quiet 
enjoyment  in  the  testator's  time,  the  executor  was  authorized  to 
recover;  and  of  his  opinion  was  that  eminent  judge  Sir  Matthew 
Hale.  Similar  doctrine  is  to  be  found  in  the  Digest  of  Baron 
Corny ns,  tit.  Covenant,  B.  1. 

In  relation  to  principles  so  well  established,  one  or  two  modern 
decisions  in  Westminster  Hall  in  opposition  to  them,  however  they 
might  there  be  regarded,  ought  not  here  to  be  considered  as  of  any 
authority.  Such  decisions  have  been  cited.  The  first  of  them  is  the 
case  of  Kingdon  exr.  v.  Nottle,  1  Mau.  &  Selw.  355.  The  defendant 
had  conveyed  to  Richard  Kingdon,  the  testator,  certain  property, 
and  covenanted  that  he  was  seised  of  it,  and  had  good  right  to  con- 
vey. It  was  averred  as  a  breach,  that  he  was  not  seised  of  the 
premises;  and  the  court  adjudged,  that  the  executor  could  not  sue 
on  the  covenant,  without  showing  special  damage  to  the  testator,  but 
that  the  heir  might.  It  was  said  by  Lord  Ellenborough,  that  "  the 
covenant,  it  was  true,  was  broken,  but  that  there  was  no  damage 


IO96  TITLE    BY    DERIVATIVE    ACQUISITION.       [PT.   VI.  CH.  II. 

sustained  in  the  testator's  life-time."  To  this  observation  of  that 
learned  and  able  judge  I  cannot  subscribe.  The  covenant  being 
broken  the  instant  it  was  made,  the  damage,  most  obviously,  was 
the  whole  consideration  paid;  and  I  am  at  a  loss  to  conceive  what 
other  or  further  damage  could  arise.  In  the  surrounding  States,  as 
well  as  in  our  own,  it  is  unquestionably  established,  that  the  damage 
is  the  consideration  paid;  and  that  this  is  immediate  on  the  delivery 
of  the  deed.  This,  then,  is  the  first  objection  to  the  determination, 
that  whatever  may  be  the  law  of  AVestminster  Hall,  the  damage,  in 
the  case  alluded  to,  is  justly  considered  as  not  nominal,  but  real, 
and  indeed  all  that  the  party  can  experience.  It  is  the  whole  con- 
sideration paid.  This  principle  alone  shows,  that  the  determination 
in  Kingdon  v.  Nottle,  is  inapplicable  to  us;  and  it  likewise  authorizes 
the  assertion  that  Lord  Ellenborough  and  his  associates,  had  they 
resided  in  Connecticut,  and  there  pronounced  their  opinion,  would 
have  decided  the  case  before  them  differently  from  what  they  have. 
To  the  determination  in  Kingdon  v.  Nottle  there  is  a  sound  objec- 
tion. It  is  oppQsed  to  principles,  uniformly,  and  for  centuries, 
established  in  Westminster  Hall.  It  was  said  by  Lord  Ellenborough, 
in  the  case  alluded  to,  that  "  if  the  executor  could  recover  nominal 
damages,  it  would  preclude  the  heir,  who  is  the  party  actually  dam- 
nified, from  recovering  at  all!"  The  force  of  this  reasoning  depends 
entirely  on  the  assertion  that  the  heir  is  "  the  party  actually  damni- 
fied; "  and  if  this  is  an  incorrect  position,  the  argument  wholly  fails. 
Now,  it  is  not  true,  that  the  heir  is  the  party  damnified.  The  dam- 
ages arise  entirely  by  the  breach  of  the  covenant  in  the  lifetime  of 
the  testator;  and  the  testator  is  the  only  person  who  receives  dam- 
age. Thus  were  all  the  determinations  before  the  last  mentioned 
decision.  To  this  effect  was  Lewis  v.  Ridge,  Lucy  v.  Levington,  and 
the  law  was  laid  down  in  Comyn's  Digest;  and  not  a  case  or  dictum 
was  there  to  the  contrary.  Indeed,  the  admission  of  Lord  Ellen- 
borough, that  the  covenant  was  broken  in  the  lifetime  of  the  testator, 
most  conclusively  shows  that  the  heir  was  not  damnified.  His  own 
damage  must  result  from  his  title  to  the  land,  and  not  from  the 
covenant  broken,  to  which  he  was  no  party.  Now,  as  to  the  land, 
the  heir  never  had  title;  nor  had  his  ancestor.  The  complaint  is, 
that  the  grantor  was  not  seised,  and  had  conveyed  no  title.  How, 
then,  is  it  possible,  that  the  heir  should  inherit  land,  to  which  his 
ancestor  had  no  title?  If,  then,  he  had  no  title  to  the  estate  sup- 
posed to  be  conveyed,  and  he  was  no  party  to  the  covenant,  and 
the  breach  happened  before  his  ancestor's  death,  what  is  the  ground 
Of  his  claim?  In  my  opinion,  none.  On  the  other  hand,  as  the 
1  nant    was   broken    in    the    testator's   lifetime,    and    the    damage 


III.  4-]  COVENANTS.  IO97 

resulting  from  the  breach  was  due  to  him;  after  his  death,  his  execu- 
tor, standing  in  his  place,  had  the  right  of  suit.  For  the  principle  is 
incontrovertible,  that  where  the  testator  can  maintain  covenant  in 
his  lifetime,  on  a  cause  of  action  then  existing,  his  executor  may 
support  the  same  action  after  his  death.  1  Swift's  Dig.  371;  Toll, 
Ex.  158,  432. 

Another  writ  of  covenant  was  brought  by  Kingdon,  as  devisee, 
against  Nottle  (4  Mau.  &  Selw.  53)  upon  the  covenant  of  seisin 
before  mentioned,  on  the  ground  that  the  covenant  ran  with  the 
land,  and  that  the  breach  happened  to  the  devisee.  Consistently 
with  the  former  determination,  the  court  decided  in  favor  of  the 
plaintiff.  It  required  some  ingenuity  to  sustain  an  action  on  a  cove- 
nant, for  a  breach  happening  in  the  time  of  the  testator,  before  the 
devisee  (the  plaintiff),  could  have  any  interest  in  the  covenant;  and 
more  especially,  as  no  special  damages  were  laid.  For  it  was  not 
stated  in  the  case,  that  the  plaintiff  was,  at  any  time  interrupted,  or 
disturbed  in  the  enjoyment  of  the  premises;  or  that  he  sustained  any 
damages,  by  the  breach  of  covenant,  in  the  testator's  lifetime. 
Accordingly,  this  point  was  met,  by  Lord  Ellenborough,  who  said: 
"  The  covenant  passes  with  the  land  to  the  devisee,  and  has  been 
broken  in  the  time  of  the  devisee;  for  so  long  as  the  defendant  has 
not  a  good  title,  there  is  a  continuing  breach,  and  it  is  not  like  a 
covenant  to  do  an  act  of  solitary  performance,  but  it  is  in  the  nature 
of  a  covenant  to  do  a  thing  toties  quoties,  as  the  exigency  of  the  case 
may  require."  From  this  opinion  I  am  compelled  to  dissent  in 
omnibus.  First,  I  affirm,  that  the  novel  idea  attending  the  breach  in 
the  testator's  lifetime,  by  calling  it  "  a  continuing  breach,"  and 
therefore  a  breach  to  the  heir  or  devisee  at  a  subsequent  time,  is  an 
ingenious  suggestion,  but  of  no  substantial  import.  Every  breach 
of  a  contract  is  a  continuing  breach,  until  it  is  in  some  manner 
healed;  but  the  great  question  is,  to  whom  does  it  continue  as  a 
breach?  The  only  answer  is,  to  the  person  who  had  title  to  the 
contract  when  it  was  broken.  It  remains,  as  it  was,  a  breach  to  the 
same  person,  who  first  had  a  cause  of  action  upon  it.  If  it  be  any- 
thing more,  it  is  not  a  continuing  breach,  but  a  new  existence.  In 
the  next  place,  I  assert,  that  it  is  like  a  covenant  to  do  an  act  of 
solitary  performance;  and  for  this  plain  reason,  that  it  is,  in  its 
nature,  a  covenant  for  a  solitary  act,  and  not  a  successive  one.  If 
the  covenant  is  broken,  that  is,  if  the  grantor  was  not  seised,  it  is 
infracted  to  the  core;  and  a  second  supposed  breach  is  as  futile  as 
the  imaginary  unbroken  existence  of  a  thing  dashed  in  pieces.  It  has 
no  analogy  to  a  covenant  to  do  a  future  act,  at  different  times,  which 
may  undergo  repeated  breaches.      It  has  no  futurition;  and  cannot 


IO98  TITLE    BY    DERIVATIVE    ACQUISITION.       [l'T.  VI.  CH.  II. 

be  partly  broken  and  partly  sound;  but  the  grantor  is  seised  or  not 
seised;  and  therefore,  the  covenant  is  inviolate,  or  violated  wholly. 
Not  further  to  pursue  the  subject,  I  remark,  that,  in  my  judgment, 
the  case  of  Kingdon  v.  Nottle  may  justly  be  said  to  authorize  the 
assignment  of  a  chose  in  action  by  devise ;  a  supposition  as  unfounded 
as  it  is  novel. 

1,  therefore,  conclude,  that  the  determinations  in  the  above  men- 
tioned cases  of  Kingdon  v.  Nottle,  are  against  the  ancient,  uniform 
and  established  law  of  Westminster  Hall;  against  well  settled 
principles  and  decided  cases  in  the  surrounding  States;  and  that  the 
judges  pronouncing  them  would  have  been  of  an  opinion  different 
from  the  one  expressed  had  they  recognized  the  principle  here  well 
established,  that  the  breach  of  the  covenant  of  seisin  is,  in  its  nature, 
total,  and  the  measure  of  damages  the  whole  consideration  money 
paid  for  the  land.  As  a  consequence,  I  am  of  opinion  that  the 
plaintiff  cannot  sustain  his  action  on  the  covenant  of  seisin. 

2.  The  next  question  relates  to  the  covenant  of  freedom  from 
incumbrances. 

The  deed  of  the  defendant  to  George  Welton  contains  a  covenant 
of  this  description;  and  the  plaintiff  claims  title  to  the  covenant, 
and  a  right  to  recover  for  a  breach  of  it,  by  virtue  of  a  deed  of 
quitclaim  from  the  defendant  and  Welton.  Without  a  further  state- 
ment of  fact,  it  is  sufficient  to  remark  that  the  plaintiff  has  no  right 
to  recover  for  the  breach  of  this  covenant;  and  if  he  had,  no  breach 
of  it  is  assigned. 

First,  he  has  no  title  to  the  covenant  of  freedom  from  incumbances, 
nor  right  to  recover  for  the  breach  of  it.  His  only  claim  is  founded 
on  the  principle  that  this  covenant  runs  with  the  land.  In  oppo- 
sition to  this  claim,  I  observe,  that  the  covenant  above  mentioned 
was  personal,  and  not  a  real  covenant;  that  it  was  broken  in  the 
testator's  lifetime,  and  could  not  run  with  the  land,  — a  peculiarity 
attending  real  covenants  only;  and  of  consequence,  that  George 
Welton  is  the  only  person  who  can  sue  on  this  unassignable  contract. 

This  covenant  is  classed,  by  the  late  Chief   Justice  Swift  (in  the 

first  volume  of  his  Digest,  p.  370),  with  the  covenant  of  sesin  and  of 

i  right  to  convey;  and  in  relation  to  them  all,  he  correctly  says: 

'  These  covenants  must  be  all   broken  at  the  time  of  executing  the 

deed,  or   they  never  can    be;   for  if  at   that  time,  the  grantor  is  not 

well  seised  >>(  the  premises,  as  an  indefeasible  estate,  or  if  he  had  no 

right   10  sell,  or    if    any   incumbrance  existed,    then   the    covenants 

an-  broken.      Mm  if  the  grantor  is  seised,  has  a  right  to  sell,  or  there 

are    no    in'  umbrances   at    the    time  <>f    making    the   deed,  then  these 

hi  never  be  brok<  n ;  for  no  subsequent  act  can  be  done, 


III.  4.]  COVENANTS.  IO99 

by  the  grantor,  which  will  amount  to  a  breach  of  them;  as  he  can 
do  no  act,  that  will  affect  or  incumber  the  estate.  These  covenants, 
of  course,  cannot  be  real  covenants;  for  being  broken  at  the  instant 
of  their  creation,  they  are  choses  in  action,  and  cannot  be  assigned. 
The  distinguishing  feature  of  the  real  covenant  is,  that  it  may  be 
broken  at  a  future  time;  and  it  is  this  quality  which  renders  it 
assignable;  but  it  must  be  assigned  before  it  is  broken;  for  when 
once  broken,  the  right  to  recover  damages,  is  a  chcse  in  action, 
which  cannot  be  assigned."  With  these  observations,  I  entirely 
concur.  The  fundamental  question,  on  which  the  whole  doctrine 
depends,  is,  when  is  the  covenant  of  freedom  from  incumbrances 
broken?  It  is  a  covenant  for  a  fact,  existing,  or  said  to  exist,  not 
infuturo,  but  in  presenti;  at  the  moment  when  the  deed  is  delivered. 
The  phraseology  of  the  covenant  is,  that  the  premises  are  free  from 
incumbrances;  not  that  they  shall  in  future  be  free;  just  like  the 
expression  the  grantor  is  seised,  and  has  good  right  to  convey.  If 
the  covenant  be  true,  it  can  never  be  broken;  if  it  be  false,  it  is 
broken  immediately,  in  which  event  it  is  a  chose  in  action,  and  can- 
not be  assigned.  The  doctrine  contended  for  was  adjudged  by  the 
supreme  judiciary  of  Massachusetts,  in  Prescott  v.  Trueman,  4  Mass. 
Rep.  627,  and  by  the  Supreme  Court  of  New  York,  in  Delavergne  v. 
Norn's,  7  Johns.  Rep.  358. 

Secondly,  no  breach  of  the  covenant  in  question  has,  by  the  plain- 
tiff, been  assigned.  The  averment  is  merely  this  —  that  the  estate 
"  is  not  free  from  all  incumbrances."  It  is  sufficient  to  say,  that 
the  law  requires  the  incumbrance  to  be  specially  named  and  set 
forth;  or  the  defendant  will  always  be  taken  by  surprise.  Incum- 
brances, in  their  nature,  are  numerous.  A  mortgage,  a  way,  a  right 
to  dig  turf,  to  pasture  cattle,  or  to  have  dower  assigned,  and  in 
short,  an  easement  of  any  kind,  is  an  incumbrance,  because  it  is  a 
load  or  weight  on  the  land,  and  must  lessen  its  value.  Prescott  v. 
Trueman,  4  Mass.  Rep.  630.  It  is  opposed  to  the  fundamental 
principles  of  pleading  (which  are  to  inform  the  court,  the  jury,  and, 
above  all,  the  party,  by  the  altercations  in  writing),  to  authorize  a 
general  allegation  that  there  are  incumbrances,  without  declaring 
what  they  are.  The  point  is  settled,  by  first  principles,  and  is 
too  clear  for  controversy.  In  Marston  v.  Hobbs,  2  Mass.  Rep.  433, 
it  was  said,  by  Chief  Justice  Parsons,  that  the  breach  of  the  covenant 
against  incumbrances,  like  that  for  quiet  enjoyment,  must  be 
specially  assigned,  showing  its  nature,  and  the  interruption  com- 
plained of.  The  same  point  was  adjudged,  by  the  same  court,  Bick- 
fordv.  Page,  2  Mass.  Rep.  455;  and  in  De  Forest  v .  Lete,  16  Johns. 
Rep.  122,  it  was  said,  by  the  Supreme  Court  of  New  York,  that  under 


IIOO  TITLE   BY   DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

a  general  assignment  of  a  breach  of  the  covenant  against  incum- 
brances, the  plaintiff  cannot  give  evidence  of  his  having  bought  in 
an  incumbrance,  because  it  was  not  specifically  alleged  in  the  decla- 
ration; and  for  the  admission  of  such  evidence,  a  new  trial  was 
granted. 

The  charge  of  the  judge  to  the  jury,  in  this  case,  is  free  from 
exception.  The  covenant  in  question,  as  was  said  by  him,  is  broken 
instantaneously,  if  ever;  and  under  the  negative  averment  of  not  free 
from  incumbrances,  the  jury  were  correctly  instructed,  that  proof  of 
a  particular  incumbrance  was  inadmissible,  because  it  should  have 
been  set  forth  specifically,  to  apprise  the  defendant  of  its  nature, 
and  give  him  the  means  of  preparation  for  his  defense. 


(d.)    Covenant  against  incumbrances. 

MITCHELL   v.  WARNER. 

5  Connecticut,  497.  —  1825. 
[Reported  herein  at  p.  1094.] 

STEWART  v.  DRAKE. 

9  New  Jersey  Law,  139 —  1S27 

[Reported  herein  at  p.  rroo.] 


(c.)  Covenants  of  warranty  and  of  quiet  enjoyment. 

STEWART  v.  DRAKE. 

9  New  Jersey  Law,  139.  —  1827. 

The  Chief  Justice  delivered  the  opinion  of  the  court: 
John  Sharps,  Jr.,  of  the  county  of  Sussex,  being  the  owner  of  two 
farms  in  that  county,  mortgaged  them  to  secure  the  payment  of  a 
large  sum  of  money.  Afterwards,  on  the  first  of  April,  1818,  he 
sold  one  of  those  farms  to  Imla  Drake,  for  $7,287  87,  and  conveyed 
it  to  him,  by  deed  of  bargain  and  sale,  containing  covenants  of 
seisin,  of  freedom  from  incumbrances,  for  quiet  enioyment.  and  of 
general  warranty.  Drake  entered  into  possession.  In  the  year 
1823,  upon  a  bill  filed  in  the  Court  of  Chancery,  on  the  mortgage, 
against  Drake  and  others,  a  decree  was  made  for  the  sale  of  the  two 
farms,  to  satisfy  the  mortgage  debt,  then  amounting  to  $9,569.96. 
On  this  decree  an  execution  was  issued,  and  the  other  farm  being 


III.  4-]  COVENANTS.  I  IOI 

first  sold  by  the  sheriff,  produced  $5,300,  leaving  a  balance  of 
$4,269.96.  On  the  7th  July,  1823,  in  order  to  raise  the  balance, 
Drake's  farm  was  sold,  and  conveyed  by  the  sheriff,  for  $2,800,  to 
Joseph  Drake,  the  son-in-law  of  Imla  Drake,  and  at  the  time  in  pos- 
session of  the  farm,  as  his  tenant.  Joseph  Drake,  in  September  fol- 
lowing, sold  and  conveyed  the  farm,  for  $3,200,  to  John  Howell, 
who  immediately  went  into  possession.  On  the  13th  of  February, 
1823,  Sharps  made  an  assignment  for  the  benefit  of  his  creditors, 
and  within  the  time  prescribed  by  the  statute,  Imla  Drake  exhibited 
his  claim  for  the  purchase  money  of  the  farm,  $7,287.87.  Upon 
exceptions,  and  a  hearing  in  the  Court  of  Common  Pleas,  the  claim 
was  admitted  to  a  dividend.  And  this  decision  is  brought  here  by 
certiorari. 

It  is  admitted  on  all  hands,  that  if  Drake  is  entitled  to  exhibit  a 
claim  under  this  assignment,  which  will  in  the  sequel  be  examined, 
the  amount  on  which  he  is  to  be  admitted  to  a  dividend  is  the  same 
as  he  would  be  entitled  to  recover  in  an  action  against  Sharps. 

On  the  part  of  the  exceptants  below,  the  plaintiffs  in  certiorari,  it 
is  insisted  that  Drake  could  not  recover  on  the  covenant  of  seisin, 
because  the  existence  of  a  mortgage  is  no  breach  of  that  covenant; 
that  on  the  covenants  of  quiet  enjoyment  and  warranty  he  could  not 
recover,  because  there  had  been  no  ouster  or  eviction,  which  is 
indispensable;  and  that  on  the  covenant  against  incumbrances,  he 
should  be  admitted  to  claim,  at  the  utmost,  not  more  than  the 
balance,  $4,269.96,  unsatisfied  by  the  first  sale. 

In  the  first  place,  as  to  the  right  of  Drake  to  recover  on  the  cove- 
nants contained  in  the  deed.  If  a  breach  of  any  one  of  the  covenants 
is  shown,  the  right  of  recovery  is  established,  and  it  will  remain  only 
to  ascertain  the  amount.  One  of  the  covenants  is,  that  the  farm, 
at  the  execution  of  the  deed,  was  free  from  incumbrances.  There 
was,  however,  upon  it  a  subsisting  incumbrance,  the  mortgage  made 
by  Sharps.  This  covenant,  therefore,  was  broken  as  soon  as  it  was 
made,  in  the  same  manner  as  the  covenant  of  seisin  is  said  to  be 
broken  as  soon  as  made,  if  the  grantor  is  not  then  seised.  Hale  v- 
Dean,  13  John.  105;  Prescott  v.  True/nan,  4  Mass.  627;  Wyman  v. 
Ballard,  12  Mass.  304;  Funk  v.  Voneida,  11  Serg.  &  Rawle,  109. 
Moreover,  the  facts  in  this  case  establish  a  breach  of  the  covenants 
for  quiet  enjoyment  and  of  warranty.  The  rule  in  respect  to  these 
covenants  was  correctly  stated  by  the  plaintiff's  counsel.  To  consti- 
tute a  breach,  there  must  be  a  lawful  eviction,  or  a  disturbance  of 
the  possession.  By  the  effect,  and  usually  by  the  terms,  of  the 
decree  of  the  Court  of  Chancery,  the  parties  defendants  therein  are 
forever  barred  and  foreclosed  of  all  equity  of  redemption,  of  so  much 


I  102  TITLE    BY   DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

of  the  mortgaged  premises,  as  may  be  sold  by  virtue  of  the  decree.. 
In  this  case,  a  sale  under  the  decree,  and  a  conveyance  by  the  sheriff, 
was  made.  The  purchaser  was  actually  in  possession  From  the 
time  of  the  conveyance  by  the  sheriff  he  held,  and  rightfully  held, 
the  possession  as  his  own,  and  shortly  afterwards  sold  to  another 
person,  whom  he  placed  in  possession.  Joseph  Drake,  the  purchaser, 
had  previously  been  the  tenant  of  Imla  Drake.  But  from  the 
sheriff's  conveyance  the  tenancy  ceased.  Imla  Drake  could  legally 
claim  neither  rent  nor  possession  against  Joseph  Drake.  Both  his 
title  and  possession  ceased,  and  by  legal  means.  A  more  complete 
disturbance  of  his  possession,  a  more  thorough  eviction,  could  not 
readily  be  devised.  The  cases  cited  by  the  plaintiff's  counsel,  from 
Johnson's  Reports,  do  not  impugn,  but  accord  with,  this  conclusion. 
The  principle  which  pervades  the  whole  is,  that  there  be  a  disturb- 
ance in,  or  deprivation  or  cessation  of,  the  possession,  by  the  prose- 
cution and  operation  of  legal  measures.     *     *     * 

We  find   no  cause  of  reversal  in  the  proceedings  of  the  Court  of 
Common  Pleas. 


(</.)   Covenants  for  further  assurance. 

Deady.  J.,  in  LAMB  v.  BURBANK. 

i  Sawyer  (U.  S.  Cir.  Ct.)  227;  No.  8012  Federal  Cases.  — 1870. 

Upon  the  amended  bill,  the  legal  title  is  in  the  heirs  of  Daniel 
H.  as  tenants  in  common.  If  the  writing  of  March  8  was  executed 
by  authority  of  Daniel  H.,  and  bound  him  and  his  heirs,  still  the 
legal  title  is  in  these  heirs,  and  Burbank  only  has  a  right  in  equity 
to  have  a  conveyance  of  such  legal  title.  At  the  date  of  the  writing 
of  March  8,  1850,  none  of  the  parties  had  any  interest  in  the  land, 
except  the  bare  possession  —  the  legal  title  was  in  the  United  States. 
The  first  covenant  in  the  writing  is  a  special  or  limited  covenant  of 
warranty,  "  against  the  claims  of  all  persons  claiming  by,  through, 
or  under  the  grantors,"  and  only  operates  upon  the  estate  which 
Daniel  H.  then  had  in  the  premises.  It  is  well  settled  that  such  a 
covenant  only  refers  to  the  existing  title  or  interest  granted,  and 
does  not  bar  the  covenantor  from  claiming  the  same  premises  against 
his  own  covenantee  or  grantee  by  title  acquired  subsequent  to  the 
making  of  his  own  deed.     2  Washb.  Real  Prop.,  p.  665. 

So  in  this  case  Daniel  H.  acquired  the  title  to  this  property  from 
the  United  States  long  after  the  date  of  the  writing  which  contains 
this  covenant,  and  he  or  his  heirs  hold  it  unaffected  by  it.  The  sec- 
ond  covenant  that   if  "  the   grantors  obtain   title   from   the  United 


III.  4]  COVENANTS.  HO3 

States  they  will  convey  the  same  to  the  grantees  by  deed  of  general 
warranty  "  is  a  covenant  for  further  assurance,  and  was  intended  to 
meet  the  contingency  which  afterwards  happened  —  that  the  United 
States  should  grant  the  premises  to  Daniel  H.  Assuming,  then,  for 
the  present,  that  it  should  be  determined  upon  the  final  hearing  of 
the  cause  that  the  writings  and  conveyances  under  which  Burbank 
claims  are  valid  and  sufficient  for  the  purposes  and  intent  expressed 
therein,  the  heirs  would  have  the  title,  and  Burbank  would  be 
entitled  in  equity  to  a  conveyance  of  the  same.  But  in  the  mean- 
time it  is  charged  in  the  bill  that  these  writings  are  fraudulent, 
informal  and  void,  and  are  only  a  cloud  upon  the  title  of  the  plain- 
tiffs. The  inquiry  involves  the  question  of  whether  Burbank  is 
entitled  in  equity  to  have  a  conveyance  of  the  land  from  the  heirs 
of  Daniel  H.  —  whether  by  virtue  of  the  second  covenant  he  has  an 
equitable  estate  in  the  premises  or  not.  To  determine  this  question 
is  the  proper  province  of  a  court  of  equity. 


COLBY  v.  OSGOOD. 
29  Barbour  (N.  Y.  Supr.  Ct.)  339.  —  1859. 

By  the  Court,  Roosevelt,  J.  —  In  1853  —  after  the  code  went  into 
operation  —  Osgood,  the  defendant,  in  consideration  of  $30,000, 
conveyed  a  certain  house  and  lot,  with  the  furniture,  in  Seventeenth 
street,  to  one  Smith,  with  full  covenants  of  seisin,  warranty,  right 
to  convey  free  from  incumbrances,  and  for  further  assurance.  The 
covenants,  as  usual,  were  made  in  terms,  not  only  with  Smith,  but 
with  "  his  heirs  and  assigns."  In  the  following  year,  to  wit,  in 
May,  1854,  Smith,  the  grantee,  for  the  same  consideration  and  with 
the  same  covenants,  conveyed  the  premises  to  Colby,  the  plaintiff  in 
this  suit.  Osgood,  it  appears,  before  his  sale  to  Smith,  had  mort- 
gaged the  lot  to  one  Snyder,  for  $10,000,  who,  in  December,  1854, 
commenced  a  foreclosure  against  Colby,  and  compelled  him  to  pay 
the  $10,000,  besides  a  large  amount  in  addition  for  interest  and 
costs,  which  Colby  now  seeks  to  compel  Osgood  to  refund.  Colby, 
it  is  conceded,  has  a  remedy  against  Smith,  and  Smith  against 
Osgood,  for  reimbursement.  The  question  is,  can  Colby,  passing 
by  Smith,  sue  Osgood,  Smith's  grantor;  or  must  he  sue  Smith,  and 
let  Smith  sue  Osgood? 

The  referee  held  that  Osgood's  covenant  was  broken  the  moment 
it  was  made;  and  that  it  was  competent,  under  the  code,  to  assign  a 
broken  covenant;  but  that  in  this  case  no  such  assignment  had  been 
made.     In  these  views  the  referee,  we  think,  partially  erred. 


II04  TITLE    BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

First.  The  answer  itself  alleges  that,  simultaneously  with  the  exe- 
cution of  the  first  deed  a  sealed  agreement  was  entered  into,  which 
recognized  the  mortgage,  and  qualified  the  effect  of  its  existence  as 
an  immediate  incumbrance  by  allowing  it  to  remain,  by  consent, 
unpaid  till  the  ist  of  November,  1854.  There  was  therefore  no 
breach  in  that  respect  of  the  covenants,  or  either  of  them,  until  after 
Smith's  conveyance  to  Colby. 

Second.  The  complaint  sets  forth  the  whole  deed  of  the  defendant, 
verbatim,  including  the  covenant  for  further  assurance.  It  there- 
fore lays  the  foundation  of  a  claim  for  a  release  of  the  mortgage,  or 
payment  of  its  equivalent  in  damages.  A.  release  of  a  mortgage  is  a 
"  further  assurance;"  and  the  right  to  further  assurance,  when  stip- 
ulated for,  passes  to  the  successive  grantees.  In  other  words,  it  is 
a  covenant  that  "  runs  with  the  land,"  and  as  a  consequence  is 
assigned  by  a  conveyance  of  the  land.  It  may  be  that  in  this  view 
of  the  cause  of  action  a  demand  should  first  have  been  made.  No 
objection,  however,  was  taken  in  the  answer  or  on  the  argument  for 
the  want  of  such  demand.  The  defense  was  placed  on  the  single 
position  that  the  plaintiff  had  no  right  to  make  any  demand,  whether 
before  suit  or  by  suit;  that  the  cause  of  action  had  never  been 
assigned  to  him,  but  belonged  still  to  the  original  covenantee;  that 
the  conveyance  to  him,  by  the  covenantee  of  the  lands,  did  not  pass 
the  right  of  action  on  the  covenants,  which,  it  was  assumed,  had 
been  previously  broken.  The  covenant  for  further  assurance 
appears  to  have  been  overlooked.  That  clearly  had  not  been  broken 
before  the  conveyance.  In  its  nature  it  was  prospective;  and 
although  in  its  legal  effect  it  might,  in  the  present  case,  give  to  the 
party  injured  the  same  amount  of  damages  as  the  covenant  against 
incumbrances,  it  still  was  not  the  same  covenant.  4  Kent,  473.  It 
ran  with  the  land,  even  if  the  other  covenant  did  not;  and  it  carried 
the  other  covenant  with  it. 

On  both  grounds,  the  dismissal  of  the  complaint  was  erroneous, 
and  the  judgment  should  be  reversed,  and  a  new  trial  ordered ;  costs 
to  abide  the  event. 

Ordered  accordingly. 


(c.)   Special  covenants  as  to  title. 

I  .A  MM  v.   H  URBAN  K. 

1  Sawyer,  2-J7;  No.  8012  Federal  Cases.  —  1870. 

I  Reported  herein  at  p.  1  102.] 


III.  5-]  MORTGAGES.  1105 

(2.)  Special  Covenants. 

(a.)  Restrictive  covenants. 

BLAKEMORE  v.  STANLEY. 

159  Massachusetts,  6.  —  1893, 
\_Reported  herein  at  p.  387.] 


ROWLAND  v.  MILLER. 
139  New  York,  93.  —  1893. 
[Reported  herein  at  p.  38S.]  ' 


5.  Transfer  by  Way  of  Security:  Mortgage.* 
a.  Nature  of  a  mortgage:  at  law;  in  equity. 
TRYON  v.  MUNSON. 
77  Pennsylvania  State,  250.  —  1874. 

[Reported  herein  at  p.  538.] 


LANE  v.  KING. 

8  Wendell  (N.  Y.),  584.  —  1832. 
[Reported  herein  at  p.  197. ]3 


WILLIS  v.  MOORE. 

59  Texas,  628.  —  1S83. 
[Reported  herein  at  p.  201.] 


b.    What  constitutes  a  mortgage:  at  law ;  in  equity. 

TYRON  v.  MUNSON. 

77  Pennsylvania  State,  250.  —  1874. 

[Reported  herein  at  p.  538.] 

1  There   are   naturally   a  great  variety  of  special   covenants;  the   above  are 
given  merely  as  illustrations.  —  Ed. 

2  See  N.  Y.   R.   P.   L.  £§  205-235,  for  New  York  statutory  rules  as  to  mort- 
gages. —  Ed. 

3  For  the  modern  New  York  doctrine,  both  at  law  and  in  equity,  see  Howell  v. 
Leavitt,  supra,  p.  1043.  —  Ed. 

LAW  OF  PROP.   IN  LAND  —  70 


II06  TITLE   BY    DERIVATIVE   ACQUISITION.      [PT.  VI.  CH.  II. 


J&W4^ 


:teltas. 


46  New  York,  605.  —  1871. 

Allen,  J.  — The  action  is  for  equitable  relief,  and  especially  for 
an  accounting  by  the  defendant  for  the  rents  and  profits  and  the 
avails  of  the  sale  of  lands  in  Brooklyn,  conveyed  by  the  plaintiff  to 
the  defendant  by  deed  absolute  upon  its  face,  but  which,  the  plaintiff 
claims,  was  intended  as  a  mortgage,  to  secure  a  loan  of  money.  In 
1S59  the  plaintiff  applied  to  the  defendant  for  a  loan  of  $10,000,  upon 
the  security  of  the  property  named,  and  after  some  negotiation,  the 
sum  required  was  advanced  to  the  plaintiff,  upon  the  delivery  of  an 
absolute  deed  of  the  property;  the  defendant,  by  an  agreement, 
executed  and  delivered  simultaneously  with  the  deed,  but  bearing 
date  a  day  or  two  later,  covenanting  to  sell  and  convey  the  same 
property  to  Mr.  Pelton,  upon  the  payment  by  him,  within  one  year, 
of  $12,500  and  interest  thereon,  together  with  all  taxes  and  assess- 
ments upon  the  premises,  which  the  defendant  should  have  paid. 

The  premises  greatly  exceeded  in  value  the  consideration  paid  for 
the  deed;  the  grantor,  Horn,  was  embarrassed  and  straitened  for 
money.  Mr.  Pelton,  the  covenantee  in  the  defendant's  agreement, 
was  counsel  for  the  plaintiff  in  the  transaction,  aiding  him  in  procur- 
ing the  loan;  and  his  testimony,  as  well  as  that  of  the  plaintiff,  was 
that  the  agreement  was  taken  by  him  for  the  use  and  benefit  and  as 
the  agent  of  the  plaintiff,  and  to  avoid  the  question  of  usury  which, 
"ft  was  supposed,  Horn  could  make,  if  the  agreement  to  reconvey 
was  directly  to  him;  and  the  judge  has  found,  that  the  transaction 
took  that  form  for  that  reason  and  no  other,  which  is  one  circum- 
stance tending  strongly  to  show  that  the  parties  regarded  the 
advance  of  the  money  as  a  loan,  and  the  conveyance  a  mortgage. 

The  judge  has  found,  upon  testimony  somewhat  conflicting,  but 
greatly  preponderating,  in  connection  with  surrounding  circum- 
stances, in  favor  of  the  findings,  that  the  advance  of  money  was  a 
loan,  to  be  repaid  at  the  end  of  one  year;  that  the  deed  was  delivered 
to  and  accepted  by  the  defendant  as  a  security  for  the  repayment 
of  the  loan,  with  an  additional  sum  agreed  upon,  and  not  as  an 
absolute  sale  and  conveyance  of  the  property;  and  that  the  agree- 
1 1 1 « •  n t  for  a  conveyance  to  Pelton  was  for  the  benefit  of  the  plain- 
tiff, and  in  place  of  an  agreement  to  reconvey  directly  to  him,  and 
for  the  reasons  before  stated,  and  that  the  papers  were  delivered 
Simultaneously,  and  as  parts  of  one  transaction;  and  as  a  conclusion 
of  law,  it  was  adjudged  that  the  plaintiff  was  entitled  to  the  account 
demanded,  the  property  having  been  sold,  and  a  redemption  impos- 
sible.    It  is  now  too  late  to  controvert  the  proposition  that  a  deed, 


III.  5-]  MORTGAGES.  II07 

absolute  upon  its  face,  may,  in  equity,  be  shown,  by  parol  or  other 
extrinsic  evidence,  to  have  been  intended  as  a  mortgage;  and  fraud 
or  mistake  in  the  preparation  or  as  to  the  form  of  the  instrument  is 
not  an  essential  element  in  an  action  for  relief,  and  to  give  effect  to 
the  intention  of  the  parties.  The  courts  of  this  State  are  fully  com- 
mitted to  the  doctrine,  and,  whatever  may  be  the  rule  in  other 
States,  here  in  passing  upon  the  question,  we  have  only  to  stand 
upon  the  safe  maxim  of  stare  decisis.  It  is  not  enough,  in  view  of 
the  fact,  that  the  adjudications  have  entered  into  and  controlled 
business  transactions,  and  become  a  rule  of  property,  to  authorize  a 
reconsideration  of  the  questions,  that  the  rule  has  been  authorita- 
tively adjudged  otherwise  as  a  rule  of  evidence  in  common-law  courts, 
and  that  eminent  judges  have  contended  earnestly  against  its 
adoption  as  a  rule  in  courts  of  equity.  Notwithstanding  their  pro- 
tests the  rule  has  been,  upon  the  fullest  consideration,  deliberately 
established,  and  cannot  now  be  lightly  departed  from.  The  principle 
was  recognized  by  the  chancellor  in  Holmes  v.  Grant,  8  Paige,  243, 
although  it  was  not  applied  in  that  case,  and  had  been  before 
asserted  under  like  circumstances  in  Robinson  v.  Cropsey,  2  Edw.  Chy. 
R.  138;  affirmed  6  Paige,  480. 

It  was  expressly  adjudged  in  Strong  v.  Stewart,  4  J.  C.  R.  167,  that 
parol  evidence  was  admissible,  to  show  that  a  mortgage  only  was 
intended  by  an  assignment  absolute  in  terms;  and  to  the  same  effect 
is  Clark  v.  Henry,  2  Cow.  324,  which  was  followed  by  this  court  in 
Murrey  v.  Walker,  31  N.  Y.  399.  In  Hodges  v.  Tennessee  Marine 
and  Fire  Insurance  Co.,  4  Seld.  416,  the  court  says,  that  "  from  an 
early  day  in  this  State  the  rule  that  parol  evidence  is  admissible  for 
the  purpose  named,  has  been  established  as  the  law  of  our  courts  of 
equity,  and  it  is  not  fitting  that  the  question  should  be  re-examined, 
and  the  cases  in  which  it  has  been  so  adjudged  are  cited  with 
approval."  In  Sturtevant  v.  Sturtevant,  20  N.  Y.  39,  the  same  judge 
pronouncing  the  opinion  as  in  the  case  last  cited,  distinguishes 
between  the  case  of  a  mortgage  and  trust,  and  it  was  decided,  that 
while  a  deed  absolute, jr^terms.  could  be  shown  to  be  a  mortgage. 
a  trust  in  favor  of  the  grantee  could  not  be  established  by  parol. 
And  see  Despard  v.  Walbridge,  15  N.  Y.  374.  The  rule  does  not  con- 
flict with  that  other  rule,  which  forbids  that  a  deed  or  other  written  .' 
instrument  shall  be  contradicted  or  varied  by  parol  evidence.  The  ' 
instrument  is  equally  valid  whether  intended  as  an  absolute  convey-  - 
ance  or  a  mortgage.  Effect  is  only  given  to  it  according  to  the 
intent  of  the  parties,  and  courts  of  equity  will  always  look  through 
the  forms  of  a  transaction  and  give  effect  to  it,  so  as  to  carry  out 
the  substantial  intent  of  the  parties. 


^J^WA  WiA  a  1 


II08  TITLE   BY   DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

It  is  not  objected  that  the  agency  of  Pelton  for  the  plaintiff  in  the 
transaction  could  not  be  shown  by  parol;  and  that  fact  being  estab- 
lished the  only  question  was,  whether  the  agreement  with  Pelton, 
which  was,  in  truth,  with  the  plaintiff,  was  intended  simply  as  an 
agreement  to  resell  the  premises  at  an  advanced  price,  or  a  defeas- 
ance giving  a  right  of  redemption.  The  fact  being  established  by 
competent  evidence  that  the  money  advanced  by  the  defendant  was 
advanced  as  a  loan,  and  not  on  the  purchase  of  the  lands,  the  rela- 
tion of  debtor  and  creditor  was  established,  and  that  relation  being 
established,  it  necessarily  followed  that  the  conveyance  in  connec- 
tion with  the  agreement  to  re-convey,  was  intended  by  the  parties 
as,  and  was  a  security  for  the  debt,  and  the  maxim,  "  once  a  mort- 
gage, always  a  mortgage,"  secured  the  debtor  a  right  of  redemption 
until  his  equity  was  foreclosed  by  the  judgment  of  a  court  of  com- 
petent jurisdiction.  Newcomb  v.  Borham,  i  Vern.  7;  Clark  v.  Henry, 
supra. 

That  there  was  no  agreement  in  the  defeasance  for  the  payment 
of  the  debt,  is  a  circumstance  entitled  to  considerable  weight,  as 
tending  to  show  that  the  conveyance  was  not  intended  as  a  mortgage, 
and  that  the  relation  of  debtor  and  creditor  did  not  exist.  But  it  is 
only  one  of  several  circumstances  to  be  considered,  and  is  not  con- 
clusive; and  the  judgment  of  the  court  below  upon  the  question  of 
fact,  the  decision  of  which  involved  the  consideration  of  this  and 
the  other  circumstances,  and  the  whole  evidence,  is  conclusive.  In 
Conway's  Exr's  v.  Alexander,  7  Cranch,  218,  Ch.  J.  Marshall  says: 
"  The  want  of  a  covenant  to  repay  the  money  is  not  complete  evi- 
dence that  a  conditional  sale  was  intended,  but  is  a  circumstance  of 
no  inconsiderable  importance."  And  see  per  Putnam,  J.,  Flagg 
v.  Mann,  14  Pick.  467.  The  question  in  this  as  in  every  case 
was,  whether  the  contract  was  a  security  for  the  repayment  of 
the  money,  or  an  actual  sale,  and  the  evidence  fully  sustains  the 
judgment  of  the  court  below  that  it  was  a  mere  security.  The  judg- 
ment is  favorable  to  the  defendant.  The  security  might  properly 
have  been  invalidated  for  usury,  and  the  plaintiff  had  judgment  for 
the  proceeds  of  the  sale  of  the  lands  without  deducting  the  money 
lent.  But  equity  has  been  done.  The  defendant  has  been  repaid 
tin-  money  loaned,  with  interest,  and  the  plaintiff  has  judgment  for 
the  residue,  of  the  purchase-money  for  which  the  mortgaged  premises 
were  sold,  and  the  plaintiff  does  not  complain. 

Judgment  affirmed. 


III.  5.]  MORTGAGES.  IIO9 

M  ACAULEY  v.  SM1XH, 

132  New  York,  524. —  1892 

Landon,  J.  —  The  agreement,  which  antedated  the  deeds  by  one 
day  and  expressed  their  intent  and  purpose,  should  be  read  in  con- 
nection with  them.  Thus  read,  the  deeds  are  shown  to  have  been 
given  by  Lucilia  Tracy  to  Howland,  Smith  and  Tracy  "  for  the  pur- 
pose of  securing  and  in  consideration  of  said  loan  of  $8,240  "  made 
by  the  grantees  to  the  grantor,  and  "  that  the  said  deed  ...  is 
a  security  for  the  said  loan  for  a  term  not  exceeding  one  year  from 
the  date  of  said  deed,  .  .  .  and  that  upon  the  payment  of  said 
sum  of  $8,240,  with  interest,  within  or  at  the  expiration  of  one  year  , 


by  the  said  Lucilia  .  .  .  the  said  Howland,  Smith  and  Tracy  t 
are  to  reconvey  said  premises  to  said  Lucilia,  .  .  .  and  in  case 
said  sum  of  $8,240  shall  not  be  repaid  during  or  at  the  expiration 
of  one  year  as  aforesaid,  then  it  is  understood  and  agreed  that  the 
said  deed  .  .  .  is  to  become  and  be  a  deed  absolute,  and  the 
said  Howland,  Smith  and  Tracy  are  to  become  and  be  the  owners 
in  fee  simple  absolute." 

The  deeds  are  thus  clearly  shown  to  have  been  intended  as  mort- 
gages.     This   conclusion   is   also    inferable   from    the    facts.      The 
premises  at  the  date  of  the  deeds  were  worth  $30,000.     The  judg- 
ments against  the  premises  were  by  the  terms  of  the  agreements  toV 
be  paid  from  the  money  loaned,  and  presumably  were  either  paid  or  v 
their  amount  retained  by  the  grantees  from  the  $8,240.     The  amount 
of  the  outstanding  mortgages  against  the  premises  was  $7,000.      It  is 
not  presumable  that  Lucilia  Tracy  intended  to  sell  property  worth  ( t 
$30,000  for  $15,240.     The  grantor  remained   in  possession  of  the 
premises   for  about  two  years  after  the  delivery  of  the  deeds.     She 
was  embarrassed  and  straitened  for  money.     Stress  is  laid  by  the 
defendants  upon  the  fact  that  the  grantor  did  not  expressly  covenant 
to  repay  the  money.     The  cases  are  to  the  effect  that  this  is  one  ofL 
several  circumstances  to  be  considered;  Horn  v.  Ketcltas   46  N.  Y.U  >"1 
605;  Morris  v.  Budlong,   78  Id.   552;  Brown  v.  Dewey,  1   Sand.  Ch. 
57;  and  here  it  is  to  be  considered  in  connection  with  the  repeated 
statement  that  the  money  to  be  advanced  by  the  grantees  is  a  loan 
and   that  "  said   deed   is  a  security  for  said  loan  for  a  term  of  not 
exceeding  one  year,"  and  that  upon  repayment  the  grantors  should 
reconvey  to  the  grantor.     It  is  plain  that  repayment  of  the  loan  was 
contemplated;  nothing  is  said  of  the  repayment  of  purchase-money, 
and   there   is  nothing  in   the  agreement  indicating  that  the  money 
advanced  by  the  grantees  was  purchase-money,  except  that  in  case 
said  sum  of  $8,240,  previously  termed  a  loan,  should  not  be  repaid  • 


I IIO  TITLE   BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CII.  II. 

at  the  expiration  of  one  year,  "  then  it  is  understood  and  agreed 
that  the  said  deed  is  to  become  and  be  a  deed  absolute,"  thus 
clearly  indicating  that  at  the  date  of  the  transaction  said  sum  was 
not  purchase-money  and  said  deed  was  not  a  deed  absolute,  but  was 
to  become  so  in  case  of  nonpayment  of  the  loan.  Clearly  upon  the 
undisputed  facts  the  deeds  were  a  mortgage  to  secure  the  money 
loaned,  and  the  trial  court  erred  in  refusing  the  plaintiff's  request  to 
so  find.  The  agreement  that  the  nonpayment  of  the  loan  within 
the  time  specified  should  convert  the  mortgage  into  an  absolute  deed 
did  not  have  that  effect.  The  agreement  to  turn  a  mortgage  into  an 
absolute  deed  in  case  of  default  is  one  that  finds  no  favor  in  equity. 
The  maxim  "  once  a  mortgage  always  a  mortgage  "  governs  the  case. 
Horn  v ■.  Keteltas,  supra;  At  array  v.  Walker,  31  N.  Y.  400;  Carrv. 
Carr,  52  Id.  251;  Remsen  v.  Hay,  2  Edw.  Ch.  535;  Clark  v.  Henry, 
2  Cow.  324;  Morris  v.  Nixon,  1  How.  (U.  S.)  118;  Villa  v.  Rod- 
riguez, 12  Wall.  323,  4  Kent's  Com.  143.  Since  the  deeds  were  a 
mortgage  the  title  did  not  pass  to  the  grantees,  but  remained  in 
Lucilia  Tracy.  Barry  v.  Hamburg  B.  Fire  Ins.  Co.,  no  N.  Y.  1; 
Thorn  v:  Sutherland,  123  Id.  236;  Shattuck  v.  Bascom,  105  Id.  39. 

The  levy  under  the  plaintiff's  attachment  was,  therefore,  upon 
Mrs.  Tracy's  land,  to  which  she  had  the  legal  title.  It  was  not 
merely  an  attempted  levy  upon  her  equitable  right  to  obtain  title. 
As  against  Howland,  Smith  and  Tracy  the  levy  was  valid  and  the 
judgment  and  execution  which  followed  the  attachment  became  a 
_>  specific  lien  upon  the  land  itself,  and  the  land  could  be  sold  upon 
execution. 

Howland,  Smith  and  Tracy  conveyed  the  premises  before  the 
attachment  was  issued  to  the  defendant,  the  New  York  Baptist  Union 
for  Ministerial  Education.  This  defendant  by  its  answer  admits 
that  $3,000  of  the  purchase-money,  with  interest  from  January  1, 
1883,  remains  unpaid,  and  that  $1,550  of  the  principal  of  one  of  the 
mortgages  upon  the  premises  given  by  Mrs.  Tracy  also  remains 
unpaid.  This  defendant  in  order  to  maintain  the  defense  that  it  is 
a  bona  fide  purchaser  without  notice  of  plaintiff's  rights,  must  have 
paid  all  the  purchase-money.  Sargent  v.  Eureka  S  A.  Co.,  46  Hun, 
[9;  Harris  v.  Norton,  16  Barb.  264;  Jewett  v.  Palmer,  7  Johns.  Ch. 
61  ;  Jackson  ex  dem  v.  Cadwell,  1  Cow.  622;  Boone  v.  Chiles,  10  Peters, 
179;   Patton  v.  Moore,  32  N.  H.  382. 

In  equity  it  has  not  completed  its  purchase,  but  to  the  extent  of 
its  payments,  innocently  made  before  notice  of  plaintiff's  claim,  is 
entitled  to  protection.  It  may,  therefore,  retire  from  the  transac- 
tion without  actual  loss  and  without  further  impairing  the  rights  of 
the  plaint  ill . 


III.  5-1 


MORTGAGES. 


mi 


The  action  is  in  aid  of  plaintiff's  execution.  Its  object  is  not  to 
reach  any  equitable  assets  of  Mrs.  Tracy,  but  to  strip  from  her 
legal  title  to  the  premises  in  question  the  obstructions  created  by 
the  deed  by  which  such  title,  apparently  but  not  in  fact  passed  from 
her  to  Howland,  Smith  and  Tracy,  and  from  them  to  the  Baptist 
Union,  and  thus  to  show  that  the  lien  acquired  by  plaintiff's  attach- 
ment of  the  premises  and  perfected  by  her  judgment  and  execution 
was  valid,  and,  therefore,  may  now  be  enforced  free  from  the  obstruc- 
tions which  seemed  to  defeat  it.  Such  an  action  is  within  the 
equitable  jurisdiction  of  the  court.  Beck  v.  Burdett,  i  Paige,  305; 
Haye  v.  Bolles,  2>S  How.  Pr.  266;  Rincheyx.  Stryker,  28  N.  Y.  45; 
Frost  v.  Mott,  34  Id.  253.  Thurber  v.  Blanck,  50  N  Y.  80,  does  not 
hold  otherwise,  but  does  hold  that  the  attachment  to  be  effective 
must  operate  upon  legal  rights;  the  precise  position  of  the  plaintiff 
here. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  event. 

Judgment  reversed. 

1  c.  Assignment  of  mortgage.      Subrogat, 
TOHNSON  v.  ZINK. 


51  New  York,  333.  —  1S73. 


action 


Action  to  restrain  the  prosecution  by  the  defer 
upon  a  bond  given  by  the  plaintiff,  which  was  secured  by  a  mortgage 
on  real  estate,  and  for  the  subrogation  of  the  plaintiff,  or  some 
person  nominated  by  him,  to  the  right  of  the  defendant,  on  his  being 
paid  the  amount  due  him. 

Lott,  Ch.  C.  —  The  conveyance  by  the  mortgagor  of  the  mort- 
gaged premises,  "  subject  to  "  the  mortgage  in  question,  to  Corn- 
stock  conveyed  to  him  the  equity  of  redemption  only,  and 
consequently  the  mortgage  was  to  be  discharged  and  satisfied  out  of 
those  premises,  before  any  right  or  interest  therein  was  acquired 
by  the  grantee,  and  as  between  those  parties  it  is  clearly  equitable 
that  such  discharge  and  satisfaction  should  be  made  out  of  the  said 
premises,  and  that  the  obligor  and  mortgagor  should  not  in  exonera- 
tion thereof,  personally  be  called  upon  to  pay  the  same  out  of  his 
individual  property.  The  effect  of  the  transaction  was  in  equity  to 
make  the  land  the  primary  fund  for  the  payment  of  the  debt,  and 
to  place  the  plaintiff  in  the  situation  or  relation  of  surety  therefor 
only.      This  principle   is  clearly  established.     See  Jumel\.  Jamel, 


III2  TITLE    BY    DERIVATIVE    ACQUISITION.       [PT.  VI.  CH.  II. 

7  Paige,  591-594;  Halsey  v.  Reed,  9  Id.  446-453,  etc. ;  Marsh  v.  Pike, 
10  Id.  595;  Cherry  v.  Monroe,  2  Barb.  Ch.  618;  Ferris  v.  Crawford, 
2  Denio,  595;  Stebbins  v.  Hall,  29  Barb.  524,  529,  538. 

This  relation  between  the  mortagor  and  his  grantee  does  not 
deprive  the  obligee  from  enforcing  the  bond  against  the  obligor. 
He  is  entitled  to  his  debt,  and  has  a  right  to  avail  himself  of  all  his 
securities.  Equity,  however,  requires  that  the  obligor,  on  the  pay- 
ment of  the  debt  out  of  his  own  funds,  should  be  subrogated  to  the 
rights  of  the  obligee,  so  that  he  can  reimburse  himself  by  a  recourse  to 
the  mortgaged  premises  for  that  purpose.  This  cannot  prejudice  the 
creditor,  and  it  is  clearly  equitable  as  between  the  creditor  and  the 
owner  of  the  land.  He  clearly  has  no  right  or  color  of  right,  justice 
or  equity  to  claim  that  he,  notwithstanding  the  conveyance  of  the 
property  subject  to  the  mortgage,  and  thus  entitling  him  only  to  its 
value  over  and  above  it,  should  in  fact  enjoy  and  hold  it  discharged 
of  the  encumbrance,  without  any  contribution,  toward  its  discharge 
and  satisfaction,  from  the  land.  This  equitable  principle  is  fully 
recognized  in  most  of  the  cases  above  cited.  Indeed,  it  is  so  con- 
sistent with  right  and  justice  as  to  require  no  authorities  to  sustain  it. 

Upon  the  application  of  it  to  this  case,  the  plaintiff  was  entitled  to 
protection  and  indemnity  out  of  the  mortgaged  premises  for  what  he 
was  called  upon  to  pay  for  the  land,  and  it  was  reasonable  and 
proper  to  have  an  assignment  of  the  bond  and  mortgage  made  to  an 
appointee  of  his  nomination,  for  his  benefit,  so  as  to  save  any  legal 
technical  question  that  might  arise  out  of  the  transfer  of  the  security 
to  the  debtor  and  obligor  himself,  or  as  to  its  operation  to  satisfy 
the  debt.  Whether  it  was  made  to  the  plaintiff  himself,  or  another 
person  to  hold  for  him,  was  wholly  immaterial  to  the  defendant. 

The  decision  of  the  referee  was,  therefore,  right  on  the  merits, 
nor  is  there  any  ground  for  the  reversal  of  the  judgment  on  the 
admissibility  of  evidence.  Assuming,  as  claimed  by  the  appellant, 
that  it  was  irrelevant  and  immaterial  whether  at  the  time  of  the 
execution  of  the  deed  from  the  plaintiff  to  Comstock  there  was  an 
allowance  made  for  the  mortgage  in  question,  the  evidence  could 
not  prejudice  the  defendant.  The  presumption  is,  where  premises 
are  conveyed  subject  to  a  mortgage  and  the  equity  of  redemption 
only  is  sold  and  conveyed,  that  the  amount  thereof  is  not  paid  to 
the  vendor,  but  is  deducted  from  the  full  value  of  the  property. 

There    was   some  evidence   given,    against   the   exception  of  the 

ndant,  of  conversations  with  him,  and  on  one  occasion  with  his 

also,  tending  to  show  that  he  had  actual  knowledge  and  notice 

of  the  existence  of  the  mortgage  in  question  as  a  lien  at  the  time  of 

the  pin-'  base  by  his  wife  and  the  execution  of  the  deed  to  her.     The 


III.  5.]  MORTGAGES.  I  I  13 

objection  made  to  its  introduction  also  was  that  it  was  immaterial 
and  irrelevant.  In  the  view  I  have  taken  of  the  case,  I  think  it  may- 
be so  considered  and  was  entirely  harmless.  The  plaintiff  was 
entitled  to  the  relief  given  him,  irrespective  of  such  knowledge  and 
notice;  but  I  may  add,  that  the  defendant  cannot  complain  of  the 
equities  resulting  from  the  transaction  in  favor  of  the  plaintiff,  when 
he  was  fully  advised  of  the  facts  on  which  they  were  based. 

It  is  unnecessary  to  inquire  whether  any  personal  obligation  was 
assumed  by  either  Comstock  or  Mrs.  Zink  to  pay  off  the  mortgage. 
That  question  is  immaterial  to  the  issue  involved  in  this  case,  and 
its  examination  would  be  entirely  irrelevant. 

It  is  proper  to  notice  an  objection  raised  by  the  appellant's  counsel 
on  the  ground  of  the  omission  of  Mrs.  Zink  as  a  party;  and  it  is 
sufficient  to  say,  in  reference  to  it,  that  no  such  question  was  raised 
by  demurrer  or  by  the  answer,  nor,  so  far  as  appears  by  the  case,  on 
the  trial.     It  is,  therefore,  unavailable  on  the  present  appeal. 

It  follows,  from   the   views  above  expressed,  that  the  judgment 

must  be  affirmed,  with  costs. 

Judgment  affirmed 


MERRITT  v.  BARTHOLICK. 


36  New  York,  44.  —  1S67. 

Parker,  J.  —  If  the  delivery  of  the  mortgage,  without  the  bond 
to  Wentworth,  as  collateral  security  for  the  debt  which  such 
delivery  was  intended  to  secure,  operated  as  a  valid  assignment  of 
the  mortgage  to  Wentworth,  the  judgment  below  is  wrong  and  can- 
not be  sustained.  On  the  other  hand,  if  it  conveyed  no  interest  in 
the  mortgage  to  Wentworth,  then  the  defendant,  who  claims  his 
title  through  Wentworth's  foreclosure  of  that  mortgage,  has  no 
defense  to  the  plaintiff's  action  to  foreclose,  and  no  interest  in 
respect  to  it  which,  under  the  facts  found  by  the  referee,,  can  avail 
him  upon  this  appeal. 

The  single  question  for  consideration  then,  is,  did  the  delivery  of 
the  mortgage  by  Merritt,  the  mortgagee,  to  Wentworth,  under  the 
circumstances  stated  in  the  referee's  report,  operate  to  invest  Went- 
worth with  any  interest  in  the  mortgage? 

The  referee  finds  that,  "  On  the  16th  of  July,  1853,  or  shortly 
thereafter,  the  bond  and  mortgage  were  assigned  by  the  obligee  and 
mortgagee  therein  named,  to  John  Campbell,  by  assignment  in 
writing,  which  was  duly  acknowledged  and  recorded  on  the  16th  day 
of  May,  1853.     That  prior  to  the  assignment  of  said  bond  and  mort- 


1 1  14  TITLE    BY   DERIVATIVE   ACQUISITION'.       [PT.  VI.  CH.  II. 

gage  to  said  Campbell,  the  mortgagee  was  indebted  to  Henry  T. 
Wentworth  in  the  sum  of  $200,  borrowed  money;  that  Wentworth 
desired  that  said  mortgage  should  be  left  with  him  as  collateral 
security  for  said  debt,  and  that  the  said  Merritt  delivered  the  said 
mortgage  to  said  Wentworth,  according  to  such  request,  and  as  col- 
lateral security  for  said  debt  of  $200;  that  the  said  mortgage  was  so 
delivered  to  the  said  Wentworth  before  the  same  was  assigned  to 
said  Campbell,  but  that  the  bond  accompanying  the  same  was  not 
delivered  to  the  said  Wentworth  at  the  time,  nor  was  anything  said 
about  the  same,  nor  is  there  any  evidence  that  the  same  was  ever 
delivered  to  said  Wentworth,  nor  was  there  any  writing  executed  in 
reference  to  such  transfer." 

As  a  mortgage  is  but  an  incident  to  the  debt  which  it  is  intended 
to  secure  [Martin  v.  Nowlin,  2  Burr.  969;  Green  v.  Hart,  1  Johns. 
580;  Jackson  v.  B  lodge  t,  5  Cow.  202;  Jackson  v.  Bronson,  19  Johns. 
32^;  Wilson  v.  Troup,  2  Cow.  231;  Cooper  v.  King,  17  Abb.  342),  the 
logical  conclusion  is,  that  a  transfer  of  the  mortgage  without  the 
debt  is  a  nullity,  and  no  interest  is  acquired  by  it.  The  security 
cannot  be  separated  from  the  debt  and  exist  independently  of  it. 
This  is  the  necessary  legal  conclusion,  and  recognized  as  the  rule  by 
a  long  course  of  judicial  decisions.  See  cases  above  cited;  also, 
4  Johns.  41;  5  Johns.  Ch.  570;  9  Wend.  So. 

Unless  then,  the  bond  was,  in  effect,  assigned  with  the  mortgage, 
Wentworth  obtained  no  interest  in  the  mortgage.  Did  the  bond  or 
the  debt  which  it  evidenced  pass  to  Wentworth?  In  the  first  place, 
the  transfer  of  the  mortgage  did  not  of  itself  operate  to  transfer  the 
bond,  for  the  legal  maxim  is  the  incident  shall  pass  by  the  grant  of 
the  principal,  but  not  the  principal  by  the  grant  of  the  incident.  So 
that  unless  we  are  authorized  to  say  that  such  was  the  intent  of  the 
parties,  we  cannot  hold  that  it  did.  This  is  a  question  of  fact,  which 
the  counsel  for  the  appellant  argues  in  his  points,  but  unless  the 
referee  has  found  it,  as  a  fact,  or  found  facts  from  which  we  are 
bound  to  infer  its  existence,  it  is  a  question  not  in  the  province  of 
ttiis  < :ourt  to  determine.  The  act  done  by  Merritt,  the  mortgagee, 
was  the  delivery  of  the  mortgage  to  Wentworth,  and  the  purpose  of 
tin;  delivery  was  to  secure  the  payment  of  the  debts  of  the  mort- 
gagee to  Wentworth.  Does  it  necessarily  follow  that  the  intention 
of  the  parties  was  to  transfer  the  bond?  The  referee  has  not  found 
either  way  upon  this  question  of  intent,  and,  therefore,  unless  the 
ii  in  question  is  to  be  inferred,  as  a  matter  of  legal  necessity 
from  what  he  docs  find,  it  must  now  be  held  not  to  have  existed. 

If  the  transfer  had   been  by  a  written  assignment,  describing  the 
mortgage  alone,  and  expressing  the  object  to  be  to  secure  the  debt 


III.  5.]  MORTGAGES.  1 1 1  5 

of  the  assignor  to  the  assignee,  nothing  being  said  about  the  bond 
or  tne  debt  which  it  represents  and  delivery  of  the  mortgage  made? 
it  would  be  impossible,  I  think,  to  hold  that  the  intention  was  to 
assign  the  bond.  There  would  be  no  opportunity  for  an  implication 
to  that  effect.  The  circumstance  that  the  assignment  would  be 
inoperative,  unless  the  bond  is  held  to  pass,  would  not  give  the 
assignment  that  effect.  The  result  of  such  holding  would  be  to 
reverse  the  maxim,  and  make  the  principal  follow  the  incident.  To 
make  the  circumstance  of  its  inefficacy  a  reason  for  giving  it  the 
effect  desired,  would,  manifestly,  uproot  the  maxim,  and  establish 
the  contrary  rule. 

The  fact  that  here  the  transfer  was  by  manual  delivery,  merely, 
nothing  being  said  as  to  the  bond,  or  the  indebtedness  secured  by  it, 
does  not  afford  any  stronger  evidence  of  intent  to  transfer  the  bond 
than  the  case  supposed.  There  is  no  circumstance  in  the  case  not 
considered  in  the  supposed  case,  and,  as  I  think,  nothing  to  compel 
the  inference  of  intent  to  transfer  the  bond.  I  am  unable  to  see, 
therefore,  any  escape  from  the  conclusion  that,  upon  this  appeal, 
the  judgment  of  the  Supreme  Court  must  be  held  correct,  and 
affirmed. 


ARNOLD  v.  GREEN. 

116  New  York,  566.  —  1889. 


Action  to  compel  the  specific  performance  of  a  contract  to  convey 
land.  By  the  contract  the  land  was  to  be  conveyed  "  subject  to  all 
existing  liens  now  on  said  property."  There  were  two  liens,  at  the 
time,  in  this  order:  (1)  The  Wadsworth  mortgage,  given  by  a  prior 
owner,  still  unpaid  when  the  action  was  begun.  (2)  A  decree  of  the 
Surrogate's  Court  for  the  payment  of  the  debts  of  Ashbel  Arnold,  a 
former  owner  of  the  land.  Both  of  these  liens  were  prior  to  defend- 
ant's right;  an  appeal  from  the  decree  was  pending  at  the  time  of 
the  trust  herein.  Plaintiffs  are  in  possession  of  the  land.  Defend- 
ant, prior  to  the  commencement  of  this  action,  paid  off  the  Wads- 
worth  mortgage,  having  first  been  refused  an  assignment  of  it. 
Defendant  now  asks  that  the  Wadsworth  mortgage  be  declared  to 
be  an  equitable  lien  in  his  favor  on  the  premises.  The  court  below 
sustained  his  position. 

Vann,  J. — This  appeal  presents  the  single  question  whether, 
under  all  the  circumstances  of  the  case,  the  defendant  should  have 
been  substituted  in  the  place  of  Mr.  Wadsworth  as  the  owner  of  the 
mortgage  in  question.      Did   he  by  the  fact  of  payment  become  the 


1 1 16  TITLE   BY    DERIVATIVE    ACQUISITION.      [PT.  VI.  CII.  II. 

equitable  assignee  of  the  security  and  entitled  to  enforce  it  for  his 
own  reimbursement  and  the  protection  of  his  interest  in  the  land? 
Under  some  circumstances  the  payment  of  a  mortgage  does  not 
satisfy  it  or  destroy  its  lien  because  equity  regards  the  person  mak- 
ing the  payment  as  the  owner  thereof  for  certain  definite  purposes 
and  keeps  it  alive  and  preserves  its  lien  for  his  benefit  and  security. 
According  to  the  well-established  principles  upon  which  the  doctrine 
of  equitable  assignment  by  subrogation  rests,  if  the  person  paying 
stands  in  such  a  relation  to  the  premises  that  his  interest,  whether 
legal  or  equitable,  cannot  otherwise  be  adequately  protected,  the 
transaction  will  be  treated  in  equity  as  an  assignment.  Sheldon  on 
Subrogation,  §§  i,  3,  14,  16;  3  Pomeroy's  Equity  Jur.  §  1211;  Jones 
on  Mortgages,  §  S74.  The  remedy  of  subrogation  is  no  longer 
limited  to  sureties  and  quasi  sureties,  but  includes  so  wide  a  range 
of  subjects  that  it  has  been  called  the  "  mode  which  equity  adopts  to 
compel  the  ultimate  payment  of  a  debt  by  one  who  in  justice,  equity 
and  good  conscience  ought  to  pay  it."  Harris  on  Subrogation,  §  1; 
Barnes  v.  Mott,  64  N.  Y.  397,  401;  Stevens  v.  Goodenough,  26  Vt.  676; 
Harusberger  v.  Yancey,  $$  Gratt.  527;  Smith  v.  Cosan,  42  Conn.  244. 
While  a  mere  volunteer,  with  no  obligation  to  pay  or  interest  to 
protect,  is  not  entitled  to  its  aid,  it  is  frequently  applied  in  favor  of  a 
vendee  of  encumbered  real  estate,  who,  although  not  personally 
liable,  has  paid  the  debt  of  another  which  is  a  charge  upon  the  land, 
and  which,  if  not  paid,  might  cause  him  to  lose  his  interest  therein. 
Under  such  circumstances  the  debt,  although  paid  and  satisfied  in 
form,  is  regarded  in  equity  as  neither  paid  nor  satisfied  in  fact,  but  by 
operation  of  law  the  former  holder  ceases  to  be  the  creditor,  while 
the  person  paying  takes  his  place  as  owner  of  the  debt  and  security 
unimpaired.  Where,  within  the  limitations  suggested,  benefit  may 
result  to  the  person  paying  without  injury  to  the  person  who  should 
pay,  equity  casts  the  burden  upon  the  latter,  who  ought  in  fairness 
to  bear  it,  provided  it  will  not  work  injustice  or  disturb  the  rights 
of  other  creditors  of  a  common  debtor.  Id.;  JoJuison  v.  Zink,  51 
N.  Y.  333;  Cole  v.  Malcolm,  66  Id.  363;  Twombly  v.  Cassidy,  S2  Id. 
155;  Gans  v.  T//ieme,  93  Id.  225,  232;  Averillv.  Taylor,  8  Id.  44,  51. 
These  principles,  when  applied  to  the  facts  of  this  case,  sustain 
the  judgment  as  modified  by  the  General  Term.  The  defendant  was 
the  purchaser  of  land  subject  to  two  incumbrances,  the  earlier  of 
which  was  a  mortgage  for  a  large  sum  past  due,  and  the  other  a 
de<  m-  in  Surrogate's  Court,  the  subject  of  which  was  still  in  litiga- 
tion. He  was  the  vendor  of  the  same  land,  subject  to  the  same 
incumbrances,  but  no  part  of  the  principal  of  the  purchase-price 
had  been  paid,  and    interest  thereon  was  past  due  and  unpaid.      The 


III.  5-]  MORTGAGES  III/ 

land  itself  was  the  primary  fund  for  the  payment  of  .said  incum- 
brances, neither  of  which  was  the  personal  debt  of  the  defendant, 
but  either  of  which,  if  enforced,  would  require  him  to  raise  the  money 
and  pay  it,  or  else  lose  his  interest  in  the  premises.  He  held  the 
legal  title  to  the  land  as  security  for  the  payment  of  the  purchase- 
price,  and  as  trustee  for  the  plaintiffs,  the  equitable  owners.  It  did 
not  appear  that  the  land  was  adequate  security  for  the  amount  there/ 
was  against  it,  including  the  demand  of  the  defendant.  It  is  clear; 
therefore,  that  he  was  not  a  mere  volunteer  or  stranger,  because 
he  had  an  actual  interest  to  protect  against  two  prior  liens,  either  of 
which  might  be  enforced  at  any  time,  involving  trouble,  expense  and 
the  possible  loss  of  his  claim.  The  danger  of  interference  may  have 
been  remote,  but  there  was  nothing  to  protect  him  against  a  change 
of  mind  on  the  part  of  the  holder  of  the  mortgage  or  on  the  part  of 
the  plaintiffs.  Freedom  from  interference  depended  upon  moral 
assurance,  not  upon  legal  right.  How  can  he  be  called  a  stranger 
to  a  debt  whose  land  is  the  primary  fund  for  the  payment  of  such 
debt?  A  stranger  or  volunteer,  as  those  terms  are  used  with  refer- 
ence to  the  subject  of  subrogation,  is  one  who,  in  no  event  resulting 
from  the  existing  state  of  affairs,  can  become  liable  for  the  debt, 
and  whose  property  is  not  charged  with  the  payment  thereof  and 
cannot  be  sold  therefor.  A  payment  made  by  one  who  was  liable  to 
be  compelled  to  make  it,  or  lose  his  property,  will  not  be  regarded 
as  made  by  a  stranger.  Where  the  person  paying  has  an  interest 
to  protect  he  is  not  a  stranger.  Even  if  he  holds  the  title  to  land 
merely  as  security,  still  he  has  an  interest  that  is  insecure,  in  a  legal 
sense,  as  long  as  the  prior  lien  is  past  due  and  held  by  another. 
Harris  on  Subrogation,  §§  795-798;  Sheldon  on  Subrogation,  §§  245, 
246;  Jones  on  Mortgages,  §  877. 

It  is  insisted,  however,  that  the  payment  made  by  the  defendant 
was  not  a  fair  effort  to  protect  his  property,  but  that  his  method  was 
underhanded  and  his  object  uncertain.  This  is  doubtless  true,  and 
it  gave  the  court  jurisdiction  to  require  the  defendant  to  so  handle 
his  security  as  not  to  injure  the  plaintiffs,  and  to  place  them  as 
nearly  as  possible  in  the  same  position  as  if  he  had  not  paid  the 
mortgage.  Owing  to  his  misconduct  he  was  properly  compelled 
not  only  to  defer  the  enforcement  of  his  security  until  the  plaintiffs 
had  had  a  reasonable  time  to  find  another  holder  for  the  mortgage, 
but  also  to  pay  the  entire  costs  of  the  litigation.  The  plaintiffs  can- 
not, with  propriety,  complain  of  the  decree  as  modified,  because 
they  lose  nothing  by  it.  They  are  substantially  situated  as  they  were 
before  the  payment  was  made.  They  should  not,  therefore,  be  per- 
mitted to  take  advantage  of  the  defendant  by  insisting  that  an  effect 


II  IS  TITLE    BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

be  given  to  the  payment  which  was  not  intended  and  which  would  be 
inequitable.  They  come  into  a  court  of  equity  seeking,  among 
other  things,  relief  from  their  own  default  in  not  paying  the  interest 
upon  the  law  day.  Stevenson  v.  Maxwell,  2  N.  Y.  408.  As  they  seek 
equity  from  the  defendant,  they  must  do  equity  toward  him;  and 
when  they  receive  all  that  they  contracted  for,  it  would  not  be 
equitable  for  them  to  avoid  paying  for  it  as  they  agreed.  Equity 
will  not  permit  them  to  receive  the  equivalent  of  $6,000  for  nothing 
and  at  the  same  time  to  demand  its  aid  for  further  relief  against  the 
person  who  parted  with  that  sum  for  their  benefit,  even  if  his 
methods  were  indirect  and  his  object  questionable.  On  the  other 
hand,  it  will  give  to  each  party  his  own;  to  the  plaintiffs  the  land, 
and  to  the  defendant  the  money  and  security,  but,  under  the  circum- 
stances, will  require  him  to  so  use  the  latter  as  not  to  take  any 
advantage  of  his  vendees. 

If  the  plaintiffs  had  made  a  tender  before  the  defendant  made  the 
payment,  or  if  they  could  not  have  been  placed  in  the  same  situation, 
substantially,  that  they  were  in  before  the  payment  was  made, 
different  questions  would  have  arisen  for  consideration  in  relation 
to  which  we  express  no  opinion. 

We  think  that  the  judgment  should  be  affirmed,  but,  under  the 
circumstances,  without  costs. 


d.   Foreclosure. 

(1.)  Strict  forclosure. 

ROSS  v.  BOARDMAN 


.),  527,  — 1880. 


22  Hun  (N.  Y.  Supr.  Ct 

Daniels,  J.  —  The  mortgages  were  executed  by  the  defendant 
and  her  husband,  upon  property  owned  by  him,  to  secure,  together, 
the  sum  of  $15,000.  One  was  given  on  or  about  June  27,  i860,  and 
the  other  on  January  29,  1862.  After  they  became  due,  the  mort- 
gagee and  holder  of  both  mortgages  commenced  an  action  for  their 
foreclosure. 

This  action  proceeded  to  judgment,  under  which  a  sale  was  made 
of  the  mortgaged   property  to  a  person  named   Powell.      He  con- 
ed to  own   the   property  from  the  time  of  this  purchase  in  1863 
until  1869,  when  he  conveyed  it  to  the  plaintiff  in  this  action. 

|'li«-  defendant  in  this  suit  was  not  made  a  party  to  that  action, 
and  for  thai  reason  it  lias  been  brought  to  obtain  a  strict  foreclosure 
of  her  interest.      At  the  sale  made  under  the  judgment  the  property 


y 


of   t 

tinu 


III.  5.]  MORTGAGES.  IH9 

brought  the  sum  of  $17,775,  which  was  more  than  was  required  to 
pay  the  amount  due  upon  the  two  mortgages,  together  with  the 
expenses  of  the  proceedings.  The  effect  of  the  omission  to  make 
the  defendant  a  party  to  the  first  foreclosure  suit,  was  to  lea^ 
contingent  right  of  dower  still  a  substantial  incumbrance  upon  the 
property]  It  was  a  subsisting  and  valuable  interest,  which  could 
only  be"  discharged  or  extinguished  by  a  release  of  it  under  the 
statute,  or  a  proper  judgment,  and  no  such  judgment  could  have  '- 
been  or  was  recovered  in  the  foreclosure  suit,  as  she  was  not  made 
a  party  to  it.  The  effect  of  the  omission  was  to  leave  her  interest 
in  the  property  substantially  the  same  as  though  no  action  had  been  , 
prosecuted  for  the  foreclosure  of  the  mortgages.  This  was  held  to 
be  the  law  applicable  to  such  a  state  of  facts  in  Smith  v.  Gardner,  42  Ifo  t 
Barb.  356;  Peabody  v.  Roberts,  47  Id.  92;  Mills  v.  Van  Voorhies,  20 
N.  Y.  412;  Simar  v.  Canaday,  53  Id.  298-303;  where  in  general 
terms  it  was  held,  that  a  wife  who  executes  a  mortgage  jointly  with 
her  husband  is  nevertheless  entitled  to  dower  in  the  equity  of 
redemption  of  which  her  husband  is  seised,  notwithstanding  the  mort- 
gage, which  right  is  not  affected  in  equity  unless  she  is  made  a  party 
to  the  foreclosure.  If  omitted,  she  can  at  any  time  redeem,  not- 
withstanding a  decree  and  sale  in  the  foreclosure  suit.  It  is  for  the 
purpose  of  extinguishing  this  right  of  the  defendant  in  the  property  IfV 
that  the  present  action,  for  a  strict  foreclosure  of  the  mortgages  in 
favor  of  the  plaintiff,  has  been  instituted,  and  the  fact  that  a  larger 
amount  was  realized  upon  the  sale  of  the  property  than  was  neces- 
sary to  pay  what  was  then  due  upon  the  mortgages,  will  not  prevent 
him  from  maintaining  the  action.  For,  by  the  terms  of  the  statute 
declaring  the  effect  of  a  foreclosure  by  action,  the  deed  given  upon 
the  sale  was  attended  with  the  effect  of  a  conveyance  executed  by 
both  the  mortgagor  and  mortgagee  of  the  property.  3  R.  S.  5th  ed. 
273,  §  88.  The  result  of  this  provision  was  to  render  the  deed, 
given  to  the  purchaser  at  the  sale,  a  conveyance  of  the  interest  of 
the  husband  in  the  property  released  from  a  third  mortgage  given 
by  the  same  parties,  and  also  to  transfer  so  much  of  the  two  mort- 
gages as  remained  unforeclosed  by  the  judgment  under  which  the 
sale  was  made,  to  the  purchaser  at  that  sale. 

Substantially  he  acquired  the  title  to  the  property,  incumbered  by 
this  contingent  dower  interest,  and  an  assignment  of  the  mortgages 
so  far  as  they  remained  unforeclosed,  upon  this  outstanding  interest. 
That  such  was  the  effect  of  the  judgment  and  sale  was  substantially 
what  was  held  in  Robinso7i  v.  Ryan,  25  N.  Y.  320.  It  is  true,  that 
was  a  foreclosure  by  advertisement;  but,  under  the  terms  of  the 
statute  already  referred  to  there  seems  to  be  no  good  reason  on 


I  120  MORTGAGES.  [PT.  VI.  CH.  II. 

which  this  case,  in  that  respect,  can  be  distinguished  from  that  one. 
When  the  purchaser  at  the  foreclosure  sale  afterwards  conveyed  the 
property  to  the  plaintiff  in  this  case,  he  by  that  conveyance  trans- 
ferred to  him  his  title,  together  with  this  interest  in  the  unextinguished 
mortgages,  and  for  that  reason  he  had  such  a  title  to  the  incum- 
brances as  entitled  him  to  maintain  an  action  for  their  strict  fore- 
closure, and  he  was  not  precluded  from  doing  so,  because  the  amount 
realized  from  the  sale  under  the  judgment  exceeded  that  which  was 
due  upon  the  mortgages.  For  that  amount  was  paid  not  only  for 
the  title  itself,  but  in  part  also  it  formed  a  consideration  for  the 
transfer  of  these  two  mortgages  so  far  as  they  had  not  been  at  that 
time  foreclosed.  Under  such  circumstances  the  settled  rule  seems 
to  be  that  the  purchaser,  or  his  subsequent  grantee,  may  maintain 
an  action  of  this  description,  for  the  purpose  of  completing  his  title 
by  securing  a  strict  foreclosure  of  the  incumbrances,  or  their 
redemption  by  the  person  whose  interest  still  subsists  in  the  prop- 
erty. Benedict  v.  Gilman,  4  Paige,  58.  This  subject  was  considered 
in  Bolles  v.  Duff,  43  N.  Y.  469,  474.  In  that  case  it  was  stated  that 
strict  foreclosures  are  now  rarely  pursued  or  allowed  in  this  State, 
except  in  cases  where  a  foreclosure  has  once  been  had  and  the 
premises  sold,  but  some  judgment-creditor,  or  persons  similarly 
situated,  not  having  been  made  a  party,  has  a  right  to  redeem.  As 
to  him  a  strict  foreclosure  is  proper.  The  facts  shown  by  the  plain- 
tiff upon  the  trial  of  this  action  brought  it  plainly  within  this  principle, 
and  for  that  reason  the  relief  demanded  by  him  should  not  have  been 
denied,  but  judgment  should  have  been  directed  to  that  extent  in 
his  favor,  and  the  effect  of  that  would  have  been  that  the  defend- 
ant's interest  in  the  property  would  be  extinguished  at  the  expira- 
tion of  the  time  designated  for  the  purpose  of  enabling  her  to 
redeem  unless  the  amount  required  for  the  protection  of  her  interest 
should  be  paid.  What  that  amount  might  be,  did  not,  and  could 
not,  appear  in  the  case,  for  the  reason  that  the  purchaser  at  the  fore- 
closure sale,  and  the  plaintiff  as  his  grantee,  had  been  for  years  in 
the  possession  and  enjoyment  of  the  property  and  the  receipt  of  its 
rents  and  profits.  For  those  they  were  both  legally  and  equitably 
liable  to  account,  and  the  amount  received  from  that  source  and 
applicable  for  that  purpose,  should  be  first  deducted  from  the  mort- 
gage debts.     The  practice  upon  this  subject  was  indicated  in  the 

of  Benedict  v.  (HI man,  already  cited,  and  the  principles  upon 
which  the  accounting  should  be  had,  were  then  substantially  settled. 
The  same  subject  was  considered  in  the  same  manner  in  Ilubbell  v. 
Moulson,  53  N.  Y.  225,  228,  229,   and   the   reference  ordered  in  this 

appears    to    have    been    properly    adapted    to    that    end.       The 


III.  5-]  MORTGAGES.  II2I 

defendant  could  redeem  her  interest  by  paying  to  the  plaintiff  what- 
ever should  prove  to  be  the  proportionate  part  of  the  mortgage  debts 
which  her  interest  ought  to  contribute,  but  the  amount  required  for 
that  purpose  can  in  no  way  be  ascertained,  without  such  an  account- 
ing as  was  directed  in  this  case.  The  judgment,  so  far  as  it  provided 
for  a  hearing  of  that  nature,  was  in  conformity  with  these  authori- 
ties, and  it  should  for  that  reason  be  sustained.  As  judgment  shouldN 
not  have  been  denied  to  the  plaintiff,  but  a  strict  foreclosure  in  his  j 
favor  should  have  been  directed,  he  could  not  properly  be  charged/ 
with  the  costs  of  the  action.  Who  may  be  entitled  to  costs  in  the 
case,  whether  the  plaintiff,  or  the  defendant,  or  neither,  can  only 
be  equitably  ascertained  when  the  result  of  the  accounting  shall 
become  known  and  final  judgment  be  directed  in  the  action.  In  this 
respect,  therefore,  the  judgment  should  also  be  modified  and  costs 
should  be  reserved  until  the  final  determination  of  the  action.  With 
these  two  modifications  the  direction  given  in  the  case  appears  to  q 
have  been  proper.  It  has  been  claimed,  on  the  part  of  the  plaintiff,  ! 
that  proof  of  the  third  mortgage  should  have  been  received  upon  the 
trial,  but  that  mortgage  formed  no  part  of  the  foreclosure  proceed- 
ings in  the  first  action,  and  certainly  no  interest  in  it  was  transferred 
to  the  purchaser  under  the  judgment,  or  to  the  plaintiff  in  this  case. 
It  was  extinguished  as  a  lien  on  the  property,  because  the  holder 
was  made  a  party  to  the  first  action,  but  as  it  formed  no  part  of  the 
title  or  interest  which  was  sold,  the  plaintiff  acquired  no  right  to  rely 
upon  it  as  a  basis  of  his  right  to  relief  in  this  case.  So  far  as  it  may 
not  have  been  fully  paid,  the  holder  of  it  may  still  be  entitled  to 
foreclose  it  against  the  defendant's  contingent  interest  in  this  prop- 
erty. If  its  existence  and  the  balance  still  remaining  unpaid  on  it 
shall  have  any  pertinency  to  the  inquiry,  or  the  investigation,  required 
to  be  made  by  the  referee,  proof  of  these  facts  will  undoubtedly  be 
received;  but  the  circumstance  that  they  were  rejected  upon  the 
trial,  and  the  complaint  was  not  allowed  to  be  amended,  so  as  to 
include  a  statement  of  them,  can  have  nothing  to  do  with  the  dispo- 
sition which  should  be  made  of  this  case  at  the  present  time.  The 
judgment  should  so  far  be  modified,  as  to  direct  a  strict  foreclosure 
of  the  mortgages  against  the  defendant,  unless  she  shall  redeem  her 
contingent  interest  in  the  property,  by  paying  the  amount  which 
may  be  found  necessary  for  that  purpose  on  the  confirmation  of  the 
referee's  report,  and  within  such  a  period  of  time  as  may  then  be 
designated  by  the  court;  and  so  much  of  the  judgment  as  provides 
for  the  recovery  of  costs  against  the  plaintiff  should  be  reversed, 
and  as  so  modified  the  judgment  already  in  the  case  should  be 
affirmed. 

LAW  OF  PROP.    IN  LAND  —  71 


1 122  TITLE   BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

(2,)  Foreclosure  by  Action,1 
HOWELL  v.  LEAVITT. 

95  New  York,  617. —  1884. 
[Reported  herein  at  p.  1043.] 


(3.)  Foreclosure  by  Advertisement  or  under  the  power  of  sale.2 

SHERMAN  v.  WILLETT. 

42  New  York,  146.  —  1870. 
[Reported  herein  at  p.   209.] 


IV.  Title  by  devise.3 

JACKSON  ex  dem.  WELLS  v.  WELLS. 

9  Johnson  (N.  Y.),  222.  —  1812. 

[Reported  herein  at  p.  513.]  4 


STALL  v.  WILBUR. 

77  New  York,  158.  —  1879. 
[Reported  herein  at  p.  207.] 


MAGOUN  v.  ILLINOIS  TRUST  AND  SAVINGS  BANK. 

18  Supreme  Court  Reporter  (U.  S.),  594.  —  1898. 

Mr.  Justice  McKenna,  after  stating  the  case,  delivered  the 
opinion  of  the  court.  —  Legacy  and  inheritance  taxes  are  not  new  in 
our  laws.  They  have  existed  in  Pennsylvania  for  over  sixty  years, 
and  have  been  enacted  in  other  States.  They  are  not  new  in  the 
laws  of  other  countries.  In  Tennessee  v.  Alston,  94  Tenn.  674,  30  S. 
W-  750,  Judge  Wilkes  gave  a  short  history  of  them,  as  follows: 
"Such    taxes   were    recognized    by   the    Roman    law.      1    Gibbon's 

1  For  the  New  York  statute  see  §§  1626-1630,  Code  Civ.  Pro.  —Ed. 

1  For  the  New  York  statute  see  §§  23S7-2409,  Code  Civ.  Pro.  —  Ed. 

'The  law  as  to"  succession  to  the  estates  of  deceased  persons"  is  the  subject 
of  a  separate  1  ourse;  the  law  of  "  devise  "  and  "  descent  "  will  not,  therefore, 
be  treated  al   length  here.  —  Ed. 

4  See  also  1  1        reported  at  pp.  53,  514  and  516,  supra.  —  Ed. 


IV.]  TITLE   BY   DEVISE. 


I  12' 


Decline  and  Fall  of  the  Roman  Empire,  pp.  163,  164.  They  were 
adopted  in  England  in  1780,  and  have  been  much  extended  since 
that  date.  Dowell's  History  of  Taxation  in  England,  148;  Acts  20 
Geo.  III.,  c.  28,  45  Geo.  III.,  c.  28,  and  16  &  17  Vict.,  c.  51;  Green 
v.  Croft,  2  H.  Bl.  30;  Hill  v.  Atkinson,  2  Mer.  45.  Such  taxes  are 
now  in  force  generally  in  the  countries  of  Europe.  Review  of 
Reviews,  Feb.,  1893.  In  the  United  States  they  were  enacted  in 
Pennsylvania  in  1826;  Maryland,  1844;  Delaware,  1869;  West  Vir- 
ginia, 1887,  and  still  more  recently  in  Connecticut,  New  Jersey, 
Ohio,  Maine,  Massachusetts,  1891;  Tennessee  in  1891  (chapter  25, 
now  repealed  by  chapter  174,  Acts  1893).  They  were  adopted  in 
North  Carolina  in  1846,  but  repealed  in  1883;  were  enacted  in  Vir- 
ginia in  1844,  repealed  in  1855,  re-enacted  in  1863,  and  repealed  in 
1884."  Other  States  have  also  enacted  them  —  Minnesota,  by  con- 
stitutional provision. 

The  constitutionality  of  the  taxes  has  been  declared,  and  the 
principles  upon  which  they  are  based  explained  in  United  States  v. 
Perkins,  163  U.  S.  625,  628,  16  Sup.  Ct.  1073;  Strode  v.  Com.,  52  Pa. 
St.  181;  Eyre  v.  Jacob,  14  Grat.  422;  Schoolfield  v.  Lynchburg,  78 
Va.  366;  Maryland  v.  Dalrymple,  70  Md.  298,  17  Atl.  82;  Clapp  v. 
Mason,  94  U.  S.  583;  In  re  At ariam' s  Estate,  141  N.  Y.  479,  36  N. 
E.  505;  Maine  v.  Hamlin,  86  Me.  495,  30  Atl.  76;  Tennessee  v. 
Alston,  94  Tenn.  674,  30  S.  W.  750;  ///  re  Wilmerding 's  Estate,  117 
Cal.  281,49  Pac.  181;  Dos  P.  Colat.  Inher.  Tax  Law,  20;  Mi  not  v. 
Winthrop  162  Mass.  113,  38  N.  E.  512;  Gelssthorpe,  v.  Furnell (Mont.) 
51  Pac.  267.      See  also  Scholey  v.Rew,  23  Wall.  331. 

It  is  not  necessary  to  review  these  cases,  or  state  at  length  the 
reasoning  by  which  they  are  supported.  They  are  based  on  two 
principles:  (1)  An  inheritance  taxis  not  one  on  property,  but  one  on 
the  succession;  (2)  the  right  to  take  property  by  devise  or  descent 
is  the  creature  of  the  law,  and  not  a  natural  right,  — a  privilege,  and 
therefore  the  authority  which  confers  it  may  impose  conditions 
upon  it.  From  these  principles  it  is  deduced  that  the  States  may 
tax  the  privilege,  discriminate  between  relatives,  and  between  these 
and  strangers,  and  grant  exemptions,  and  are  not  precluded  from 
this  power  by  the  provisions  of  the  respective  State  constitutions 
requiring  uniformity  and  equality  of  taxation. 

The  second  principle  was  given  prominence  in  the  arguments 
at  bar.  The  appellee  claimed  that  the  power  of  the  State  could  be 
exerted  to  the  extent  of  making  the  State  the  heir  to  everybody, 
and  the  appellant  asserted  a  natural  right  of  children  to  inherit.  Of 
the  former  proposition  we  are  not  required  to  express  an  opinion. 
Nor,    indeed,    of    the    latter,    for    appellant    conceded    that   testa- 


1 124  TITLE   BY    DERIVATIVE   ACQUISITION.      [PT.  VI.  CH.  II. 

mentary  disposition  and  inheritance  were  subject  to  regulation. 
However,  as  pertinent  to  the  subject,  decisions  of  this  court  may- 
be cited.  In  United  States  v.  Fox,  94  U.  S.  315-321,  a  law  of  the 
State  of  New  York  confining  devises  to  natural  persons  and  cor- 
porations created  under  its  laws  was  considered,  and  a  devise 
of  land  to  the  United  States  was  held  void.      The  court  said: 

"  The  power  of  the  State  to  regulate  the  tenure  of  real  property 
within  her  limits,  and  the  modes  of  its  acquisition  and  transfer,  and 
the  rules  of  its  descent,  and  the  extent  to  which  a  testamentary  dis- 
position of  it  may  be  exercised  by  its  owners,  is  undoubted.  It  is 
an  established  principle  of  law,  everywhere  recognized,  arising  from 
the  necessity  of  the  case,  that  the  disposition  of  immovable  prop- 
erty, whether  by  deed,  descent,  or  by  any  other  mode,  is  exclusively 
subject  to  the  government  within  whose  jurisdiction  the  property  is 
situated.     McCormick  v.  Sullivant,  10  Wheat.   202. 

"  Statutes  of  wills,  as  is  justly  observed  by  the  Court  of  Appeals, 
•are  enabling  acts,  and  prior  to  the  statute  of  32  Hen.  VIII.  there  was 
no  general  power  at  common  law  to  devise  lands.  The  power  was 
opposed  to  the  feudal  policy  of  holding  lands  inalienable  without 
the  consent  of  the  lord.  The  English  statute  of  wills  became  a  part 
of  the  law  of  New  York  upon  the  adoption  of  her  constitution  in 
1777,  and,  with  some  modifications  in  its  language,  remains  so  at  this 
day.  Every  person  must  therefore,  devise  his  lands  in  that  State 
within  the  limitations  of  the  statute,  or  he  cannot  devise  them  at  all. 
His  power  is  bounded  by  its  conditions." 

In  Mager  v.  Grt'ma,  8  How.  493,  there  was  considered  the  validity 
of  a  law  of  Louisiana  imposing  a  tax  of  10  per  cent,  upon  legacies, 
when  the  legatee  was  neither  a  citizen  of  the  United  States  nor 
domiciled  therein.  Mr.  Chief  Justice  Taney  considered  the  legal 
question  of  easy  solution,  and  disposed  of  it  summarily.  He  said: 
'  This  is  a  plain  case,  and  when  the  facts  are  stated  the  questions  of 
law  may  be  easily  disposed  of  in  a  few  words."  After  stating  the 
case  briefly,  he  further  said: 

"  Now,  the  law  in  question  is  nothing  more  than  an  exercise  of 
the  power  which  every  State  and  sovereignty  possesses,  of  regulating 
the  manner  and  terms  upon  which  property,  real  or  personal  within 
its  dominion  may  be  transmitted  by  last  will  and  testament,  or  by 
inheritance,  and  of  prescribing  who  shall  and  who  shall  not  be 
1  apable  of  taking  it.  Every  State  or  nation  may  unquestionably 
refuse  to  allow  an  alien  to  take  cither  real  or  personal  property  situ- 
ated within  its  limits,  either  as  heir  or  legatee,  and  may,  if  it  think 
proper,   direct     thai    property  so  descending  or  bequeathed  shall 


IV.]  TITLE    BY    DEVISE.  1125 

belong  to  the  State.  In  many  of  the  States  of  this  Union  at  this 
day,  real  property  devised  to  an  alien  is  liable  to  escheat.  And  if  a 
State  may  deny  the  privilege  altogether,  it  follows  that  when  it 
grants  it,  it  may  annex  to  the  grant  any  conditions  which  it  supposes 
to  be  required  by  its  interests  or  policy.  This  has  been  done  by 
Louisiana.  The  right  to  take  has  been  given  to  the  alien,  subject  to 
a  deduction  of  10  per  cent  for  the  use  of  the  State. 

"  In  some  of  the  States  laws  have  been  passed  at  different  times 
imposing  a  tax  similar  to  the  one  now  in  question  upon  its  own  citi- 
zens, as  well  as  foreigners,  and  the  constitutionality  of  these  laws 
has  never  been  questioned.  And  if  a  State  may  impose  it  upon  its 
own  citizens,  it  will  hardly  be  contended  that  aliens  are  entitled  to 
exemption,  and  that  their  property  in  our  own  country  is  not  liable 
to  the  same  burdens  that  may  lawfully  be  imposed  upon  that  of  our 
own  citizens. 

"  We  see  no  objection  to  such  a  tax,  whether  imposed  on  citizens 
and  aliens  alike,  or  upon  the  latter  exclusively." 

In  United  States  v.  Perkins,  163  U.  S.  625-631,  16  Sup.  Ct.  1073, 
the  inheritance  tax  law  of  the  State  of  New  York  was  involved. 
Mr.  Justice  Brown,  speaking  for  this  court,  said: 

"  While  the  laws  of  all  civilized  States  recognize  in  every  citizen 
the  absolute  right  to  his  own  earnings,  and  the  enjoyment  of  his 
own  property,  and  the  increase  thereof  during  his  life,  except  so  far 
as  the  State  may  require  him  to  contribute  his  share  for  public 
expenses,  the  right  to  dispose  of  his  property  by  will  has  always 
been  considered  purely  a  creature  of  statute  and  within  legislative 
control.  '  By  the  common  law,  as  it  stood  in  the  reign  of  Henry 
II.,  a  man's  goods  were  to  be  divided  into  three  equal  parts,  of 
which  one  went  to  his  heirs  or  lineal  descendants,  another  to  his 
wife,  and  a  third  was  at  his  own  disposal;  or,  if  he  died  without  a 
wife,  he  might  then  dispose  of  one  moiety,  and  the  other  went  to 
his  children;  and  so,  e  converse,  if  he  had  no  children,  the  wife  was 
entitled  to  one  moiety,  and  he  might  bequeath  the  other;  but  if  he 
died  without  either  wife  or  issue,  the  whole  was  at  his  own  disposal.' 
2  Bl.  Com.  492. 

"  Prior  to  the  statute  of  wills  enacted  in  the  reign  of  Henry  VIII., 
the  right  to  a  testamentary  disposition  of  the  property  did  not 
extend  to  real  estate  at  all,  and  as  to  personal  estate  was  limited  as 
above  stated.  Although  these  restrictions  have  long  since  been 
abolished  in  England,  and  never  existed  in  this  country,  except  in 
Louisiana,  the  right  of  a  widow  to  her  dower,  and  to  a  share  in  the 
personal  estate,  is  ordinarily  secured  to  her  by  statute. 


I  1 26  TITLE   BY    DERIVATIVE   ACQUISITION.       [PT.  VI.  CH.  II. 

"  By  the  Code  of  Napoleon,  gifts  of  property,  whether  by  acts 
inter  vivos  or  by  will,  must  not  exceed  one-half  the  estate  if  the 
testator  leave  but  one  child,  one-third  if  he  leaves  two  children,  and 
one-fourth  if  he  leaves  three  or  more.  If  he  have  no  children,  but 
leaves  ancestors,  both  in  the  paternal  and  maternal  line,  he  may  give 
away  but  one-half  of  his  property,  and  but  three-fourths  if  he  have 
ancestors  in  but  one  line.  By  the  law  of  Italy  one-half  of  a 
testator's  property  must  be  distributed  equally  among  all  his  chil- 
dren. The  other  half  he  may  leave  to  his  eldest  son,  or  to  whom- 
soever he  pleases.  Similar  restrictions  upon  the  power  of  a  dispo- 
sition by  will  are  found  in  the  codes  of  other  continental  countries, 
as  well  as  in  the  State  of  Louisiana.  Though  the  general  consent 
of  the  most  enlightened  nations  has,  from  the  earliest  historical 
period  recognized  a  natural  right  in  children  to  inherit  the  property 
of  the  parents,  we  know  of  no  legal  principle  to  prevent  the 
legislature  from  taking  away  or  limiting  the  right  of  testamentary 
disposition,  or  imposing  such  conditions  upon  its  exercise  as  it  may 
deem  conducive  to  public  good." 


CHAPTER  III. 
Title  by  Descent. 

OVERTURF  v.   DUGAN. 

29  Ohio  State,  230.  —  1876. 
[Reported  herein  at  p.  20.] 

MARCH  v.  BERRIER. 

6  Iredell's  Equity  (N.  C),  524.  —  1850. 
[Reported  herein  at  p.  70.] 


SHERMAN  v.  WILLETT. 

42  New  York,  146.  —  1870. 

{Reported  herein  at  p.  209.] 


BATES  v.  SHRAEDER. 

13  Johnson  (N.  Y.),  260.  —  1816. 
[Reported  herein  at  p.  460. ]' 


BATES  v.  BROWN. 

5  Wallace  (U.  S.),  710.  —  1894. 

Ejectment.  — Wolcott  devised  his  real  estate  to  his  wife  Eleanor 
and  his  daughter  Mary  Ann,  and  their  heirs  and  assigns  forever. 
Mary  Ann  died  intestate  and  without  issue  in  1832.  In  1833  Eleanor 
conveyed  the  premises  to  David  Hunter.  In  1836  Eleanor  remar- 
ried and  plaintiff  is  the  only  issue  of  that  marriage. 

1  For  the  New  York  Statute  of  Descents,  see  R.  P.  L.,  §§  280-296.  Titles  by 
curtesy  and  dower  consummate  are  analogous  to  titles  by  descent.  —  Ed. 

[1127] 


I  I  28  TITLE   BY    DESCENT.  [PART  VI. 

Swayne  J.  — Mary  Ann  Wolcott,  from  whom  the  plaintiff  in  error 
claims  to  have  derived  his  title  by  inheritance,  died  nearly  four  years 
before  his  birth.  During  all  the  intervening  time  it  is  not  denied  that 
the  title  was  vested  in  his  mother  and  her  grantee.  Such  was  the 
effect  of  the  statute.  It  is  clear  in  its  language,  and  there  is  no  room 
for  controversy  upon  the  subject.  Although  born  after  the  title 
became  thus  vested,  he  insists  that  upon  his  birth  it  became,  to  the 
extent  of  his  claim,  divested  from  the  grantee  and  vested  in  him.  His 
later  birth  and  relationship  to  the  propositus,  he  contends,  is  to  be 
followed  by  the  same  results  as  if  he  had  been  living  at  the  time  of 
her  death. 

It  is  alleged  that  the  rule  of  "  shifting  inheritances  "  in  the  Eng- 
lish law  of  descent,  is  in  force  in  Illinois,  and  must,  govern  the 
decision  of  this  case. 

The  operation  of  this  rule  is  thus  tersely  illustrated  in  a  note  by 
Chitty,  in  his  Blackstone:  "As  if  an  estate  is  given  to  an  only 
child,  who  dies,  it  may  descend  to  an  aunt,  who  may  be  stripped  of 
it  by  an  after-born  uncle,  on  whom  a  subsequent  sister  of  the 
deceased  may  enter,  and  who  will  again  be  deprived  of  the  estate 
by  the  birth  of  a  brother.  It  seems  to  be  determined  that  every  one 
has  a  right  to  retain  the  rents  and  profits  which  accrued  while  he 
was  thus  legally  possessed  of  the  inheritance.  Hargrave's  Co.  Litt. 
ii  ;  Goodtittle  v.  Newman,  3  Wils.  526."  2  Christ.  Bl.  Comm.  208, 
note  9. 

Such  is  undoubtedly  the  common  law  of  England.  Watk.  Des. 
169.  It  is  said  the  Ordinance  of  1787,  which  embraced  the  territory 
now  constituting  the  State  of  Illinois,  and  the  acts  of  the  Legislature 
of  that  State  of  the  4th  of  February,  1819,  and  of  the  3d  of  March, 
1X45,  are  to  be  considered  in  this  connection. 

The  ordinance  created  a  court  which  it  declared  "  shall  have 
common-law  jurisdiction,"  and  it  guaranteed  to  the  people  of  the 
territory  "  judicial  proceedings  according  to  the  course  of  the  com- 
mon law."  There  is  no  allusion  in  it  to  the  common  law  but  these. 
The  two  acts  of  the  Legislature  contain  substantially  the  same  pro- 
visions. What  is  expressed  in  the  second  act,  and  not  in  the  first, 
is  (  learly  implied  in  the  former.  The  latter  declared  that  "  the 
common  law  of  England,  so  far  as  the  same  is  applicable  and  of  a 
general    nature,"     .     .  "  shall   be    the   rule    of   decision,    and 

shall  be  considered  as  in  full  force  until  repealed  by  legislative 
authority."  Rev.  St.  111.  1 S45,  p.  337.  Mary  Ann  Wolcott  died,  and 
the  plaintiff  in  error  was  born  before  this  act  became  a  law,  but  it 
may  I"-  properly  referred  to  as  containing  an  exposition  of  the  legis- 
lative intenl  in  the  prior  act.     Although  the  former  act  adopts  "the 


CHAP.  III.]  TITLE    BY    DESCENT.  1 1 29 

common  law  of  England  "  in  general  terms,  it  was  undoubtedly 
intended  to  produce  that  result  only  so  far  as  that  law  was  "  appli- 
cable and  of  a  general  nature." 

By  the  common  law,  actual  seisin,  or  seisin  in  deed,  is  indis- 
pensable to  the  inheritable  quality  of  estates.  If  the  ancestor  were 
not  seised,  however  clear  his  right  of  property,  the  heir  cannot 
inherit.  According  to  the  canons  of  descent,  hereditaments 
descend  lineally,  but  can  never  ascend.  This  rule  is  applied  so 
rigidly  that  it  is  said  "  the  estate  shall  rather  escheat  than  violate 
the  laws  of  gravitation." 

The  male  issue  is  admitted  before  the  female.  When  there  are 
two  or  more  males,  the  eldest  only  shall  inherit,  but  females 
altogether. 

Lineal  descendants,  in  infinitum,  represent  their  ancestors  standing 
in  the  same  place  the  ancestor  would  have  stood,  if  living. 

On  failure  of  lineal  descendants  of  the  ancestor,  the  inheritance 
descends  to  his  collateral  relations  —  being  of  the  blood  of  the  first 
purchaser  —  subject  to  the  three  preceding  rules. 

The  collateral  heir  of  the  intestate  must  be  his  collateral  kinsman 
of  the  whole  blood. 

In  collateral  inheritances  the  male  stock  is  preferred  to  the 
female.  Kindred  of  the  blood  of  the  male  ancestor,  however 
remote,  are  admitted  before  those  of  the  blood  of  the  female,  how- 
ever near,  unless  where  the  lands  have,  in  fact,  descended  from  a 
female.     Watk.  Des.  95. 

These  principles  sprang  from  the  martial  genius  of  the  feudal  sys- 
tem. When  that  system  lost  its  vigor,  and  in  effect  passed  away, 
they  were  sustained  and  cherished  by  the  spirit  which  controlled  the 
civil  polity  of  the  kingdom.  The  celebrated  statute  of  12  Car.  II., 
c.  24,  which  Blackstone  pronounces  a  greater  acquisition  to  private 
property  than  Magna  Charta,  was  followed  by  no  change  in  the 
canons  of  descent.  The  dominant  principles  in  the  British  consti- 
tution have  always  been  monarchical  and  aristocratic.  These 
canons  tend  to  prevent  the  diffusion  of  landed  property,  and  to  pro- 
mote its  accumulation  in  the  hands  of  the  few.  They  thus  conserve 
the  splendor  of  the  nobility  and  the  influence  of  the  leading  families, 
and  rank  and  wealth  are  the  bulwarks  of  the  throne.  The  monarch 
and  the  aristocracy  give  to  each  other  reciprocal  support.  Power 
is  ever  eager  to  enlarge  and  perpetuate  itself,  and  the  privileged 
classes  cling  to  these  rules  of  descent  with  a  tenacity  characteristic 
of  their  importance  — as  means  to  the  end  they  are  intended  to  help 
to  subserve. 

Before  the  Revolution,  some  of  the  colonies  had  passed  laws  reg- 


II30  TITLE   BY   DESCENT.  [PART  VI. 

ulating  the  descent  of  real  property  upon  principles  essentially- 
different  from  those  of  the  common  law.  In  most  of  them  the 
common  law  subsisted  until  after  the  close  of  the  Revolution,  and 
the  return  of  peace.  It  prevailed  in  Virginia  until  the  act  of  her 
Legislature  of  1785  took  effect,  and  it  was,  perhaps,  the  law  upon 
this  subject  in  "  the  Northwestern  Territory,"  at  the  time  of  its 
cession  in  1784  by  Virginia  to  the  United  States.  With  the  close  of 
the  Revolution  came  a  new  state  of  things.  There  was  no  monarch, 
and  no  privileged  class.  The  equality  of  the  legal  rights  of  every 
citizen  was  a  maxim  universally  recognized  and  acted  upon  as  funda- 
mental. The  spirit  from  which  it  proceeded  has  founded  and  shaped 
our  institutions,  State  and  National,  and  has  impressed  itself  upon 
the  entire  jurisprudence  of  the  country.  One  of  its  most  striking 
manifestations  is  to  be  found  in  the  legislation  of  the  States  upon 
the  subject  under  consideration.  Of  the  results  an  eminent  writer 
thus  speaks:  "  In  the  United  States  the  English  common  law  of 
descents,  in  its  most  essential  features,  has  been  universally 
rejected,  and  each  State  has  established  a  law  of  descents  for  itself." 
4  Kent  Comm.  412. 

Another  writer,  no  less  eminent,  upon  this  topic  says:  "  In  the 
law  of  descents  there  is  an  almost  total  change  of  the  common  law. 
It  is  radically  new  in  each  State,  bearing  no  resemblance  to  the 
common  law  in  most  of  the  States,  and  having  great  and  essential 
differences  in  all."     Reeve,   Des.  11. 

So  far  as  British  law  was  taken  as  the  basis  of  this  legislation  in 
the  different  States,  it  was  the  statutes  of  Charles  II.  and  James  II. 
respecting  the  distribution  of  personal  property,  and  not  the  canons 
of  descent  of  the  common  law.  The  two  systems  are  radically 
different  in  their  principles. 

The  Ordinance  of  1787  contains  a  complete  series  of  provisions 
upon  the  subject.  They  are  the  type  and  reflex  of  the  action  of 
many  of  the  States  at  that  time.  The  ordinance  declared  that  the 
estates  of  persons  dying  intestate  "  shall  descend  to  and  be  dis- 
tributed among  their  children,  and  the  descendants  of  a  deceased 
child  in  equal  parts;  the  descendants  of  a  deceased  child  or  grand- 
child to  take  the  share  of  their  deceased  parent  in  equal  parts  among 
them;  and  when  there  shall  be  no  children  or  descendants,  then  in 
equal  parts  to  the  next  of  kin,  in  equal  degree;  and  among  col- 
laterals the  children  of  a  deceased  brother  or  sister  of  the  intestate 
shall  have,  in  equal  parts  among  them,  their  deceased  parent  s 
share;  and  there  shall  in  no  case  be  a  distinction  between  kindred  of 
the  whole  and  half  blood." 

We    find    lure  not  a  trace  of  the  common  law.     These  provisions 


CHAP.   III.]  TITLE    BY    DESCENT.  II3I 

are  diametrically  opposed  to  all  its  leading  maxims.  We  cannot 
infer  from  their  silence  that  anything  not  expressed  was  intended  to 
be  adopted  from  that  source  by  implication  or  construction. 

The  statute  governing  the  descent  of  real  estate,  already  referred 
to,  is  also  a  complete  code  upon  the  subject  of  which  it  treats.  It 
is  to  be  presumed  to  cover  every  case  for  which  the  legislature 
deemed  it  proper  to  provide.  If  the  same  question  had  come  before 
us  under  the  ordinance,  we  should  have  said,  with  reference  to  the 
common  law,  conflict  is  abrogation  and  silence  is  exclusion.  The 
spirit  and  aims  of  the  two  systems  are  wholly  different.  One  seeks 
to  promote  accumulation  —  the  other  diffusion.  One  recognizes  and 
cherishes  the  exclusive  claim  of  the  eldest  son  —  the  other  the  equal 
rights  of  all  his  brothers  and  sisters.  The  latter  makes  no  distinc- 
tion on  account  of  age,  sex,  or  half  blood.  We  apply  to  the  statute 
also  the  remark  that  silence  is  exclusion.  It  speaks  in  the  present 
tense  —  of  the  state  of  things  existing  at  the  time  of  the  death  of 
the  intestate,  and  not  of  any  change  or  different  state  of  things 
which  might  occur  thereafter.  If  the  Legislature  had  designed  to 
provide  for  this  case,  according  to  the  rule  insisted  upon,  we  cannot 
doubt  that  they  would  have  said  so  in  express  terms.  The  statute 
bears  no  marks  of  haste  or  inattention.  We  cannot  believe  it  was 
intended  to  leave  a  rule  of  the  common  law  so  well  known,  and  so 
important,  to  be  deduced  and  established  only  by  the  doubtful 
results  of  discussion  and  inference.  The  draughtsman  of  the  bill 
could  not  have  overlooked  it,  and  the  silence  of  the  statute  is  full 
of  meaning. 

One  class  of  posthumous  children  are  provided  for.  We  see  no 
reason  to  believe  that  another  was  intended  to  be  included, 
especially  when  the  principle  involved  is  so  important.  The  inten- 
tion of  the  Legislature  constitutes  the  law.  That  intention  is  mani- 
fested alike  by  what  they  have  said  and  by  what  they  have  omitted 
to  say.  Their  language  is  our  guide  to  their  meaning,  and  under 
the  circumstances  we  can  recognize  none  other.  WTe  cannot  go 
farther  than  they  have  gone.  The  plaintiff  in  error  asks  us,  in 
effect,  to  interpolate  into  the  statute  a  provision  which  it  does  not 
contain.  Were  we  to  do  so,  we  should  assume  the  function  of  the 
Legislature  and  forget  that  of  the  court.  The  limit  of  the  law  is  the 
boundary  of  our  authority,  and  we  may  not  pass  it. 

The  principle  contended  for  was  applied  in  the  case  of  Dunn  v. 
Evans,  7  Ohio,  169.  The  case  is  briefly  reported,  and  no  arguments 
of  counsel  appear.  It  was  also  adopted  in  North  Carolina,  in  Cutlar 
v.  Cutlar,  2  Hawks,  324,  and  in  Caldivell  v.  Black,  5  Ired.  463.     No 


I  132  TITLE    BY    DESCENT.  [PART  VI. 

recognition   of   it  is  to  be  found,  it  is  believed,  in  any  other  Ameri- 
can adjudication. 

The  subject  was  elaborately  examined  by  the  Supreme  Court  of 
Ohio,  in  Drake  v.  Rogers,  13  Ohio  St.  21,  and  Dunn  v.  Evans,  was 
overruled.  It  came  before  the  Supreme  Court  of  Indiana  in  Cox  v. 
Mathews,  17  Ind.  367,  and  received  there  also  a  thorough  examina- 
tion. The  result  was  the  same  as  in  the  last  case  in  Ohio.  The 
doctrine  was  repudiated. 

The  court  said:  "  Under  the  laws  of  this  State  it  is  contemplated 
that  such  change  of  title  from  one  living  person  to  another  is  to  be 
made  by  deed  duly  executed,  rather  than  by  our  statutes  of  descent. 
.  .  .  The  feudal  policy  of  tying  up  estates  in  the  hands  of  a 
landed  aristocracy,  which  had  much  to  do  with  the  shifting  of 
descents  as  recognized  by  the  English  canons  of  descent,  is  contrary 
to  the  spirit  of  our  laws  and  the  genius  of  our  institutions.  It  has 
been  the  policy  in  this  State,  and  in  this  country  generally,  not  only 
to  let  estates  descend  to  heirs  equally,  without  reference  to  sex  or 
primogeniture,  but  also  to  make  titles  secure  and  safe  to  those  who 
may  purchase  from  heirs  upon  whom  the  descent  may  be  cast.  Our 
laws  have  denned  and  determined  who  shall  inherit  estates  upon  the 
death  of  a  person  seised  of  lands.  When  those  thus  inheriting  make 
conveyances,  the  purchasers  have  a  right  to  rely  upon  the  title  thus 
acquired.  If  titles  thus  acquired  could  be  defeated  by  the  birth  of 
nearer  heirs,  perhaps  years  afterwards,  great  injustice  might,  in 
many  cases,  be  done,  and  utter  confusion  and  uncertainty  would 
prevail  in  reference  to  titles  thus  acquired.  We  are  of  opinion  that 
the  doctrine  of  shifting  descents  does  not  prevail  under  our  laws, 
any  more  than  the  other  English  rule,  that  kinsmen  of  the  whole 
blood  only  can  inherit." 

The  rule  is  sanctioned  by  no  American  writer  upon  the  law  of 
descents.  Judge  Reeve,  Reeve,  Des.,  p.  74,  Int.,  speaking  of  dis- 
tributees, says:  "  I  am  of  opinion  that  such  posthumous  children 
who  were  born  at  the  time  of  the  .distribution  were  entitled,  and 
none  others." 

It  is  to  be  regretted  that  we  have  not  the  benefit  of  an  adjudica- 
tion by  the  Supreme  Court  of  Illinois  upon  the  subject. 

Their  interpretation  —  the  statute  being  a  local  one — would  of 
t  nurse  l,<:   followed  m    this  court.     We  have,   however,  no  doubt  of 
soundness  of  the  conclusion  we  have  reached. 

We  find  no  error  in  the  record,  and  the  judgment  of  the  Circuit 
1  •  is  affirmed. 


CHAP.  III.]  TITLE    BY    DESCENT.  1133 

JOHNSON  v.  HAINES. 
4  Dallas  (Pa.),  64.  —  1799. 

In  error  from  the  Supreme  Court. 

The  question  arose  upon  the  following  facts,  which,  by  agreement, 
were  to  be  considered  as  if  found  by  a  special  verdict. 

"  Ejectment  for  a  house  and  lot  in  Germantown,  of  which  Rebecca 
Vanaken  died  seised  on  the  13th  of  February,  1797,  intestate,  and 
leaving  no  father,  mother,  child,  grandchild,  brother,  or  sister,  living. 

"  But  the  intestate  had  had  brothers  and  sisters,  who  died  under 
these  circumstances: 

"  1st.   Richard,  who  died  without  issue. 

"  2d.  Catharine,  who  married  Casper  Wistar,  and  left  issue,  Rich- 
ard, Margaret,  Catharine,  Rebecca,  Sarah,  and  Casper;  of  this 
family  Richard,  Margaret  and  Rebecca  are  dead;  but  all  of  them 
leaving  issue. 

"  3d.  Anne,  who  married Lukens,  and  left  issue  John,  Mary, 

Daniel,  Derrick  and  Rebecca;  all  of  this  family  died  in  the  life  of 
the  intestate,  but  all  of  them  left  issue. 

"  4th.  John,  who  died  in  the  lifetime  of  the  intestate,  but  left  issue 
Anthony  (the  plaintiff  in  error),  John  Joseph,  and  Margaret,  and 
Margaret  also  died  in  the  intestate's  lifetime,  leaving  issue. 

"  5th.  Margaret,  who  intermarried  with  Reuben  Haines,  and  left 
issue  Casper  (the  lessor  of  the  plaintiff  below),  Catharine,  Josiah, 
and  Reuben;  Josiah  is  dead,  leaving  one  son,  who  is  now  alive,  and 
Reuben  is  dead  without  issue. 

"  It  was  agreed  that  Margaret,  the  daughter  of  Catharine,  who 
was  the  sister  of  Rebecca,  died  in  thejifetime  of  the  intestate. 

"  And  the  questions  submitted  to  the  court  are,  whether  the  plain- 
tiff in  error  is  entitled  to  the  whole  of  the  premises?  And,  if  he  is 
not,  how  the  premises  are  to  be  divided  ?  " 

M'Kean,  C.  J. —  The  intestate  died,  leaving  the  children  of  several 
of  her  brothers  and  sisters,  and  a  grandchild  of  one  of  her  brothers; 
and  it  is  now  made  a  question,  whether  her  real  estate  shall  be 
divided  among  these  surviving  relations,  or  descend  entirely  to  her 
heir-at-law?  By  the  sixth  section  of  the  charter  granted  to  William 
Penn,  the  laws  of  England  "  for  regulating  and  governing  of  prop- 
erty, as  well  for  the  descent  and  enjoyment  of  land  as  for  the  enjoy- 
ment and  succession  of  goods  and  chatties,"  were  introduced  and 
established  in  Pennsylvania,  to  continue  till  they  were  altered  by 
the  Legislature  of  the  province.  The  common  law  being,  therefore, 
the  original  guide,  and  the  plaintiff  in  error  being  the  heir  at  com- 


1 1 34  TITLE    BY    DESCENT.  [PART  VI. 

mon  law,  his  title  must  prevail,  unless  it  shall  appear,  that  an  alter- 
ation in  the  rule  has  been  made  by  some  act  of  the  General 
Assembly. 

Now,  when  the  intestate  died,  there  was  but  one  law  in  existence 
on  the  subject,  the  law  of  the  19th  of  April,  1794;  and  though  the  sixth 
section  of  that  law  provides  for  the  case  of  a  person  dying  intestate, 
leaving  "  neither  widow  nor  lawful  issue,  but  leaving  a  father, 
brothers,  and  sisters,"  it  does  not  provide,  nor  does  any  other  of 
the  sections  provide,  for  the  case  of  a  person  dying  intestate,  with- 
out lawful  issue,  and  leaving  no  father  or  mother,  brothers  or  sisters. 
The  descent  of  the  real  estate,  in  this  specific  case,  was  not,  there- 
fore, altered  or  regulated  by  any  act  of  the  General  Assembly,  when 
the  estate  was  vested  in  the  person  entitled  to  take,  at  the  death  of 
the  intestate. 

It  is  probable,  that  if  the  case  had  been  stated  to  the  Legislature, 
they  would  have  directed  the  same  distribution  in  the  year  1794,  that 
they  have  since  done  by  the  act  of  the  year  1797;  and,  it  is  urged, 
that  as  there  is  equal  reason  for  making  such  a  distribution,  where  no 
father  survives,  as  where  a  father  does  survive,  the  intestate,  the 
court  ought,  upon  the  obvious  principle  and  policy  of  the  law,  to 
supply  the  deficiency.  But,  it  must  be  remembered,  that  the  system 
of  distributing  real  estates  in  cases  of  intestacy,  is  an  encroachmert 
on  the  common  law;  and  wherever  such  an  encroachment  takes  away 
a  right  which  would  otherwise  be  vested  in  the  heir-at-law,  the 
operation  of  the  statute  should  not  be  extended  further,  than  it  is 
carried  by  the  very  words  of  the  Legislature. 

We  are  upon  the  whole,  unanimously,  of  opinion,  that  the  judgment 
below  should  be  reversed;  and  that  judgment  should  be  given  for 
the  plaintiff  in  error. 


SEARS  v.  RUSSELL. 

8  Gray  (Mass.),  86.  —  1857. 


Bill  in  equity  by  the  infant  children  of  Frederic  R.  and  Mary 
Ann  Sears,  his  deceased  wife,  against  the  trustees  under  the  will  of 
her  father  and  the  other  heirs  of  said  testator  to  establish  their  right 
to  certain  real  and  personal  property  of  testator. 

BiGELOW,  J. —  *  *  *  We  are  thus  brought  to  a  consideration  of 
the  nature  and  quality  of  the  estate  which  the  plaintiffs  will  take 
under  the  conveyance  to  be  made  to  them  by  the  trustees.  There 
would  have  been  no  room  for  doubt  or  question  on  this  point,  if  the 


CHAP.  III.]  TITLE    BY    DESCENT.  I  I 


5  3 


will  had  contained  no  provision  beyond  the  direction  to  the  trustees 
to  convey  the  estates  to  the  testator's  grandchildren,  if  living,  or  to 
their  issue,  or  in  default  of  such  children  or  issue,  to  the  heirs-at-law 
of  the  testator.  The  plaintiffs  would  then  very  clearly  have  been 
entitled  to  an  estate  in  fee  simple. 

If  the  devise  had  been  to  the  children  of  the  daughter  and  their 
heirs  forever,  but,  if  they  had  died  without  issue,  then  to  the  heirs- 
at-law  of  the  testator,  it  would  have  created  an  estate-tail  by  impli- 
cation. The  gift  over  would  then  have  been  on  an  indefinite  failure 
of  issue,  and  the  law,  implying  an  intent  in  the  testator  that  the 
issue  were  to  take  the  estate  in  succession,  as  children  and  heirs  of 
the  parent,  would  cut  down  the  fee  to  an  estate-tail.  Nightingale  v. 
Burrell,  15  Pick.  104;  Hall  v.  Priest,  6  Gray,  18. 

But  no  such  implication  can  be  raised  under  the  provisions  of  this 
will  The  gift  over  is  not  on  an  indefinite  failure  of  issue  to  the 
daughter,  but  on  such  failure  in  the  lifetime  of  the  husband.  The 
intent  of  the  testator  is  expressly  declared  to  be,  not  for  the  benefit 
of  the  issue  of  the  children,  but  to  exclude  their  father  from  inherit- 
ing the  estate  from  them.  Upon  his  death,  their  estates  are  to 
become  absolute,  and  if  they  should  die  in  his  lifetime,  leaving  issue, 
the  estate  would  descend  to  such  issue  in  fee.  The  description  of 
the  contingency,  therefore,  upon  which  the  gift  over  is  to  take  effect, 
is  such  that  it  must  be  construed  to  be  an  executory  devise.  The 
gift  to  the  children  was  of  a  fee;  it  cannot  be  cut  down  to  an  estate- 
tail  by  implication;  there  can  be  no  remainder  after  the  gift  of  a 
fee;  it  is  the  limitation  of  a  fee  on  a  contingency  after  a  previous 
estate  in  fee,  and  must  take  effect,  if  at  all,  as  an  executory  devise. 
The  heirs-at-law  of  the  testator,  to  whom  the  estates  are  devised  upon 
the  happening  of  the  contingency,  if  they  do  not  take  by  descent, 
must  claim  as  executory  devisees. 

But  it  is  urged,  that  the  limitation  being  to  the  heirs-at-law  of  the 
testator,  the  estate  must  vest  in  them  by  descent,  and  that  they 
cannot  take  as  purchasers  under  the  will.  This  argument  is  founded 
on  the  well  settled  rule  of  law,  that  a  devise  to  an  heir,  of  the  same 
estate  in  nature  and  quality  as  that  to  which  he  would  be  entitled  by 
descent,  is  void.  In  such  cases,  the  heir  takes  by  descent  and  not 
as  purchaser.  Ellis  v.  Page,  7  Cush.  161,  and  cases  there  cited.  •  If 
this  rule  applies  to  the  present  case,  then  it  would  follow  that  the 
gift  over  to  the  heirs-at-law  would  fail  as  an  executory  devise,  so 
that  their  title  would  not  depend  upon  the  principles  of  law  by  which 
estates  of  that  nature  are  governed. 

But  it  is  entirely  clear  that  this  devise  over  to  the  heirs  of  the 
testator  does  not  come  within  the  recognized  tests  by  which  an  heir 


1136  TITLE    BY    DESCENT.  [PART  VI. 

is  held  to  be  in  by  descent,  and  not  by  purchase.  It  is  essential  to 
a  title  by  descent  that  the  heir  should  take  the  same  estate  in 
quantity  and  quality,  as  if  no  will  had  been  made  and  the  estate  had 
been  left  to  descend  to  him;  and  this  rule  is  not  affected  by  carving 
out  of  the  fee  a  prior  particular  or  contingent  estate,  or  subjecting 
it  to  an  executory  devise.  All  that  is  necessary  to  the  operation  of 
the  rule  is,  that  when  the  estate  vests  in  the  heirs,  they  should  hold 
it  by  the  same  tenure  and  in  like  manner  as  if  the  devise  had  been 
omitted.  If  the  nature  or  quality  of  the  estate  is  changed  when  it 
comes  to  the  heirs,  of  if  they  take  it  in  different  shares  or  propor- 
tions, the  descent  will  be  broken,  and  they  must  come  in  as  pur- 
chasers under  the  will.  Ellis  v.  Page,  7  Cush.  164;  Heading  v.  Hoys- 
ion,  1  Salk.  242,  2  Ld.  Raym.  829,  and  1  Com.  R.  123;  6  Cruise  Dig. 
tit.  3S  c.  S,  §§  9,  10. 

Applying  this  rule  to  the  present  case,  it  is  clear  that  the  heirs- 
at-law  of  the  testator  must  take  as  devisees,  and  not  by  descent. 
The  limitation  over  to  them  is  contingent  until  the  prescribed  event 
shall  occur.  The  devise  is  to  those  who  shall  be  his  heirs  when 
the  contingency  arises,  and  not  to  those  who  were  his  heirs  at  the 
time  of  his  decease.  They  must  take  the  estate  under  and  by  force 
of  the  will,  in  such  proportions  as  it  may  vest  in  them  when  the 
event  occurs,  and  not  as  heirs-at-law  in  the  shares  to  which  they 
would  have  been  entitled  if  the  devise  over  to  them  had  been  omitted. 
Such,  we  think,  was  clearly  the  intent  of  the  testator.  The  rules  of 
construction,  that  the  word  "  heirs  "  in  a  will  is  usually  construed 
to  mean  those  who  are  such  at  the  time  of  the  testator's  decease; 
and  that  estates  created  by  devise  are  to  be  held  to  be  vested  rather 
than  contingent;  must  give  way  to  the  controlling  rule  of  interpret 
tation  that  the  intent  of  the  testator  is  to  govern,  if  it  does  not  con- 
flict with  the  rules  of  law.  Cholmondelcy  v.  Clinton,  2  Jac.  &  Walk. 
70,  80,  89;  Doe  v.  Frost,  3  B.  &  Aid.  546;  Richardson  v.  Wheatland, 
7  Met.  169;  Olney  v.  Hull,  21  Pick.  314.  And  if  it  be  found  to  con- 
flict, it  does  not  change  the  rule  of  construction.  The  will  must  fail 
of  effect  so  far  as  to  violate  the  rules  of  law,  not  because  the  intent 
of  the  testator  does  not  control  its  construction,  but  because  the 
1.  ,v  will  not  permit  his  intent  to  be  accomplished.  Brattle  Square 
Church  v.  Grant,  3  Gray,  158;  Hall  v.  Priest,  6  Gray,  22,  23. 

The  intent  of  the  testator,  in  making  the  limitation  to  his  heirs- 
at-law  in  this  clause  of  the  will,  is  not  left  in  any  doubt.  It  is 
expressly  dei  lared,  to  be  to  prevent  his  son-in-law  from  inheriting  any 
portion  of  the  testator's  estate,  as  heir  to  his  children.  The  devise 
to  tin  hi  irs  was  to  take  effect  only  upon  one  contingency.  If  the 
Child   survived   the   father,  or  died   in  his  lifetime,  leaving  issue,  the 


CHAP.  III.]  TITLE    BY   DESCENT.  1 1 37 

heirs-at-law  were  to  take  nothing.  The  object  of  the  testator  was, 
not  to  benefit  his  heirs,  but  to  break  the  legal  course  of  descent  in 
a  certain  contingency,  so  as  to  exclude  his  son-in-law  from  partici- 
pating in  his  estate,  beyond  the  specific  sum  bequeathed  to  him. 

To  carry  out  this  intent,  it  is  necessary  to  construe  the  limitation 
to  heirs,  as  being  to  those  who  should  hold  that  relation  when  the 
contemplated  contingency  should  happen.  If  it  should  be  held  to 
mean  a  devise  to  the  heirs  of  the  testator  at  the  time  of  his  decease, 
this  declared  purpose  would  be  defeated.  The  right  or  possibility 
of  taking  the  estate  in  the  prescribed  contingency,  would  then  have 
vested  in  part  in  the  testator's  daughter,  at  his  decease,  as  one  of 
his  heirs;  on  her  death,  her  share  or  proportion  of  this  right  or  pos- 
sibility would  have  descended  to  her  children;  and,  in  case  of  their 
death,  without  issue,  in  the  lifetime  of  their  father,  it  would  go  by 
descent  to  him  —  the  very  result  which  the  testator  sought  most 
sedulously  to  prevent  by  this  limitation  to  his  heirs.  It  cannot  be 
supposed  that  the  testator  intended  to  make  a  provision,  the  effect 
of  which  would  be  to  admit  his  son-in-law  to  a  share  in  that  part  of 
his  estate,  from  which  he  expressly  declared  it  to  be  his  purpose  to 
exclude  him. 

But  this  is  not  the  whole  extent  to  which  this  intent  might  be 
defeated,  if  the  term  "  heirs-at-law  "  in  this  devise  should  be  con- 
strued to  be  the  heirs  general  of  the  testator  at  the  time  of  his 
decease.  It  would  then  be  a  vested  interest  in  them;  if  any  of  his 
children  should  die,  leaving  issue,  this  interest  would  descend  to 
their  children;  in  case  of  their  death,  it  would  go  to  their  surviving 
parent,  the  son-in-law,  or  daughter-in-law,  of  the  testator.  To  illus- 
trate by  an  event  which  is  understood  to  have  already  occurred: 
One  of  the  testator's  sons  has  deceased  since  the  probate  of  the  will, 
leaving  an  only  daughter,  who,  as  her  father's  representative,  takes 
his  right  to  this  contingent  interest,  if  it  was  vested  at  the  time  of 
the  testator's  death.  If  the  daughter  should  die,  this  interest 
would  go  to  her  mother,  a  daughter-in-law  of  the  testator;  so  that 
in  the  event  of  the  death  of  the  plaintiffs,  or  either  of  them,  that 
daughter-in-law  would  take,  as  heir  of  her  own  daughter,  a  portion 
of  the  estates  devised  to  these  plaintiffs.  The  result  of  such  an 
interpretation  of  this  gift  over  to  the  heirs,  would  therefore  be,  in 
the  supposed  contingency,  to  give  a  portion  of  the  testator's  estate, 
not  only  to  his  son-in-law,  the  father  of  the  plaintiffs,  but  also  to  a 
daughter-in-law,  the  wife  of  one  of  his  sons,  contrary  to  his  dis- 
tinctly declared  intention;  and  the  same  result  would  follow  in  the 
like  contingency  in  regard  to  the  estates,  devised  in  similar  terms 
to  the  testator's  other  children. 

LAW   UF    PROP.    IN   LAND  —  72 


1 1  38  TITLE    BY    DESCENT.  [PART  VI. 

This  view  of  the  intent  of  the  testator  in  the  gift  over  to  his  heirs- 
at-law,  is  greatly  strengthened  by  the  use  of  the  same  words  with  a 
similar  meaning  in  a  preceding  part  of  the  same  clause  in  the  will; 
by  which  he  directs  the  trustees,  in  the  event  of  the  death  of  his 
daughter,  without  issue,  to  convey  the  estate,  which  had  been  held 
by  them  in  trust  for  her  use,  to  his  heirs-at-law.  Here  he  clearly 
intended  that  the  conveyance  should  be  made  to  those  who  should 
be  his  heirs,  at  the  time  the  contingency  should  occur,  and  not  to 
those  who  were  his  heirs  at  the  time  of  his  death.  If  the  latter  con- 
struction were  adopted,  it  would  follow  that  his  daughter,  being  one 
of  his  heirs  at  his  decease,  had  an  equitable  estate  for  life,  and  also 
a  vested  right  to  a  conveyance  in  fee  of  the  same  estate,  upon  her 
own  decease  —  an  interpretation  manifestly  absurd;  as  it  would 
present  the  anomaly  of  the  creation  of  a  trust  estate  for  life  for  the 
separate  use  of  the  daughter,  carefully  guarded,  so  as  to  be  beyond 
her  own  control  and  that  of  her  husband,  accompanied  with  a  vested 
right  to  a  conveyance  of  the  whole  estate  in  fee,  subject  to  her  abso- 
lute disposal.  The  language  of  the  will  and  the  intent  of  the  testa- 
tor are  coincident.  The  trustees  were  to  convey  in  esse  when  the 
contingency  should  arise.  The  conveyance  was  to  be  made  to  per- 
sons then  answering  the  description  of  the  testator's  heirs-at-law, 
and  not  to  those  who  were  such  at  his  decease,  one  of  whom  must 
necessarily  have  died  before  the  contingency  could  arise.  This 
interpretation  of  the  term  "  heirs-at-law,"  as  used  by  the  testator  in 
directing  a  conveyance  by  the  trustees,  is  too  clear  to  admit  of 
doubt.  It  is  reasonable  to  infer  that  the  same  words  were  used  with 
like  meaning  in  the  very  next  clause  of  the  will,  in  disposing  of  the 
same  estates  in  the  event  of  the  occurrence  of  another  contingency. 

Without  enlarging  further  upon  this  part  of  the  case,  the  con- 
siderations already  suggested  render  it  certain  that  the  intent  of  the 
testator  was  to  devise  the  estates  to  those  who  should  be  his  heirs- 
at-law,  at  the  time  the  gift  over  should  take  effect.  They  cannot 
claim  by  descent,  because  the  estate  on  the  happening  of  the  pre- 
scribed contingency  would  not  vest  in  those  who  were  the  heirs  of 
the  testator  at  the  time  of  his  decease,  and  those  who  would  be 
entitled  could  not  take  in  the  same  proportions,  as  they  would  have 
ilnn--,  if  the  devise  over  had  been  omitted.  They  must  take,  if  at 
all,  under  the  will  as  purchasers  by  force  of  the  executory  devise. 

The  only  remaining  question  is,  whether  the  intent  of  the  testator 
can  be  carried  out  consistently  with  the  rules  of  law;  that  is,  whether 
the  gift  over  as  an  executory  devise  will  certainly  take  effect  within 
the  limits  which  are  essential  t«»  its  validity.  The  principles  appli- 
cable   I"    estates    of    this    nature    have    been     fully    considered    and 


CHAP.   III.]  TITLE    BY    DESCENT.  I  1 39 

explained  in  a  recent  case.  Brattle  Square  Church  v.  Grant,  3  Gray, 
142.  It  was  there  held,  that  a  limitation  by  way  of  executory  devise, 
which  may  possibly  not  take  effect  within  the  term  of  a  life  or  lives 
in  being  at  the  death  of  the  testator,  and  twenty-one  years  after- 
wards, (adding,  in  case  of  gestation,  about  nine  months,)  is  void  for 
remoteness.  In  the  present  case,  the  limitation  over  was  not  to 
take  effect  until  after  the  death  of  the  testator's  daughter,  and  after 
the  death  of  her  children,  including  those  born  after  the  death  of  the 
testator,  or  any  of  them.  It  was  not  a  limitation  upon  a  life  in 
being,  with  twenty-one  years  superadded,  but  upon  a  life  in  being, 
and  after  its  termination  upon  a  life  or  lives  not  in  being  at  the 
time  of  the  testator's  death,  and  which  might  continue  for  fifty  years 
or  more  after  the  life  of  the  first  taker.  Indeed  the  gift  over  could 
not  take  effect  within  the  prescribed  period  as  to  the  share  of  any 
child  born  after  the  testator's  death,  unless  it  died  within  twenty-one 
years  after  its  mother.  Standing  by  itself,  therefore,  as  a  devise  to 
the  mother,  and,  after  her  death,  to  her  children,  born  or  unborn  at 
the  testator's  death,  and,  on  their  decease,  to  those  who  should  be 
then  the  heirs  of  the  testator,  it  was  clearly  too  remote,  because  it 
was  a  limitation  which  possibly  might  not  take  effect  until  after  the 
termination  of  a  life  in  being  at  the  testator's  death,  to  wit,  the 
life  of  the  testator's  daughter,  and  more  than  twenty-one  years  after- 
wards; that  is,  until  the  death  of  her  after-born  children,  which 
might  not  occur  within  the  allotted  period. 

But  it  may  be  suggested,  that  as  the  gift  over  was  limited  on  the 
death  of  a  child  or  children  in  the  lifetime  of  the  father,  without 
issue,  and  as  the  father  was  living  at  the  time  of  the  testator's  death, 
it  is  in  fact  a  limitation  on  a  life  in  being,  and  does  not  violate  the 
rule  of  law.  It  is  true  that,  as  events  have  transpired  since  the 
death  of  the  testator  —  to  wit,  by  the  death  of  his  daugher,  leaving 
a  husband  and  children  alive  —  the  devise  to  the  heirs  would  vest, 
if  at  all,  before  the  expiration  of  the  prescribed  period.  But  the 
point  of  time  at  which  the  will  is  to  be  construed  is  at  the  testator's 
death.  It  is  then  that  its  language  speaks.  A  devise  must  be  then 
legal,  or  it  must  fail.  It  is  not  sufficient  that  on  the  happening  of 
certain  events  the  gift  over  may  take  effect,  and,  if  originally  limited 
to  those  events,  would  have  been  valid;  but  it  must  appear  to  be 
legal  and  valid  in  all  the  events  which,  at  the  time  when  the  will 
takes  effect,  may  by  possibility  occur.  A  limitation  by  way  of 
executory  devise  to  be  valid  must,  ex  necessitate,  take  effect  within 
the  prescribed  period.  If  the  event  upon  which  the  estate  is  limited, 
may,  by  possibility,  not  occur  within  that  time,  it  is  too  remote. 
Brattle  Square  Church  v.  Grant,  3  Gray,  153,  and  cases  there  cited. 


1 140  TITLE    BY    DESCENT.  [PART  VI. 

If,  in  the  present  case,  the  devise  had  been  to  the  daughter  for 
life,  and  on  her  death  to  her  children  in  fee,  but  if  the  children  or 
either  of  them  should  die  without  issue,  in  the  lifetime  of  any  hus- 
band of  the  daughter,  living  at  the  testator's  death,  then  to  the  heirs 
of  the  testator,  it  would  not  have  been  liable  to  the  objection  of 
remoteness;  because  it  would  be  limited  over  on  an  event  which 
must  occur  within  the  allowed  period,  to  wit,  a  life  in  being  at  the 
testator's  death.  But  although,  at  the  time  of  the  death  of  the 
testator,  his  daughter  had  a  husband  living,  his  subsequent  decease 
was  neither  impossible  nor  improbable.  In  the  event  of  his  death, 
she  might  have  contracted  a  second  marriage  and  had  issue  by  a 
husband  who  was  not  born  at  the  time  of  the  death  of  the  testator. 
Such  an  event  was  certainly  improbable,  but  it  was  not  impossible, 
and  so  the  devise  over  might  by  possibility  not  have  taken  effect 
during  a  life  in  being  at  the  testator's  death,  and  more  than  twenty- 
one  years  thereafter.      It  was  therefore  void  for  remoteness. 

Nor  does  it  make  any  difference  in  the  operation  of  the  rule 
against  perpetuities  upon  the  devise  in  question,  that  the  gift  over 
might  take  effect,  as  being  within  the  proper  limits  in  relation  to  a 
portion  of  the  estate  devised,  although  void  as  to  another  portion, 
as  being  too  remote.  For  instance:  It  might  be  contended  that  as 
to  the  portions  of  the  estate  whch  would  go  to  the  grandchildren  of 
the  testator,  born  during  his  life,  or  during  the  lifetime  of  his  son- 
in-law  living  at  his  decease,  the  gift  over  was  not  open  to  objection 
on  the  ground  of  remoteness,  although  it  might  be  as  to  the  shares 
of  other  grandchildren,  the  issue  of  a  second  marriage  of  the  daughter 
of  the  testator,  and  born  after  his  death.  But  the  difficulty  is,  that 
the  shares  of  the  grandchildren  were  contingent  till  the  death  of 
their  mother.  The  trustees  were  to  convey  to  the  children  then 
living.  Those  who  had  previously  deceased  took  no  vested  interest 
until  the  event  happened.  The  fee  remained  in  the  trustees,  who 
were  to  convey  it  to  those  of  her  children  who  survived  her.  Under 
this  devise,  therefore,  it  was  possible  that  the  entire  estate  would 
go  to  children  of  the  daughter,  born  after  the  testator's  death,  and 
by  a  husband  not  then  living.  Such  might  be  the  result,  if  the 
Children  of  the  first  marriage  should  die  before  their  mother,  and  in 
that  event  the  whole  estate  would  be  limited  over  on  a  contingency 
too  remote.  As  the  validity  of  the  gift  over  must  be  determined  on 
the  principle,  that  it  cannot  by  possibility  take  effect  beyond  the 
period  allowed  by  law,  it  follows  thai  this  devise  must  fail,  because 
tin-  limitation  to  the  heirs  is  math'  to  depend  on  an  event  which 
may  noi  h  ippen  until  after  that  period  has  expired.  The  possibility, 
however    remote,  that    the    limitation  may  not  take  effect  within  the 


CHAP.   III.]  TITLE    BY    DESCENT.  I  141 

time  fixed  by  the  rule,  is  fatal  to  its  validity.  Lewis  on  Perp.  170; 
Netvman  v.  Newman,  10  Sim.  51;  Dodd  v.  Wake,  8  Sim.  615.  See, 
also,  Challis  v.  Doe,  18  Ad.  &  El.  N.  R.  231,  247. 

The  entire  devise  over  to  the  heirs  must,  therefore,  fail  as  being 
too  remote;  and  as  the  rule  applies  to  every  executory  limitation  by 
will,  whether  of  real  or  personal  estate  (Lewis  on  Perp.  169),  the 
whole  of  the  property  comprehended  in  the  gift  to  the  heirs  of  the 
testator,  must  vest  in  the  plaintiffs,  free  from  the  divesting  limita- 
tion. The  fee  to  be  conveyed,  and  the  personal  property  to  be 
transferred,  by  the  trustees  to  the  plaintiffs,  being  subject  to  a  gift 
over,  which  is  void  for  remoteness,  remain  in  them  absolutely, 
unaffected  by  the  limitation  to  the  heirs  of  the  testator.  Brattle 
Square  Church  v.  Grant,  3  Gray,  156. 

We  are  inclined  to  the  opinion  that  the  gift  over,  being  an  execu- 
tory devise,  is  void  for  another  reason.  By  the  will,  the  testator 
has  given  to  his  grandchildren  the  power  to  make  a  will,  and  dispose 
of  the  estates  given  over  to  his  heirs,  if  they  shall  have  arrived  at 
the  age  of  thirty  years,  at  the  time  when  they  are  to  receive  the 
property  from  the  trustees;  that  is,  on  the  death  of  their  mother. 
One  of  the  distinguishing  features  of  an  executory  devise  is  its 
indestructibility  by  the  first  taker.  Here  is  a  power  of  disposition 
expressly  given  to  the  children,  which  is  inconsistent  with  the  gift 
to  the  heirs.  See  Holmes  v.  Godson,  35  Eng.  Law  &  Eq.  R.  591, 
and  cases  cited.  But  it  is  unnecessary  to  determine  this  point,  and 
we  forbear  to  express  an  opinion  upon  it. 

Decree  for  the  plaintiffs. 


INDEX 


The  References 

Abandonment:  (See  Disclaimer.) 
after  statute  has  run,  1059. 
while  statute  is  running,  1060. 
by  a  grantee  after  acceptance,  626. 
by  a  devisee,  626. 
of  legal  life  estate,  626. 
of  easement,  816. 

Abeyance : 

freehold  must  not  be  in,  909. 
reasons  for  rule  against,  909. 

Acceleration  of  Remainders  : 

when  prior  estate  void  in  its  limita- 
tion, 919. 

after  more   than   two  successive   life 
estates,  904. 

none   if    remainder   contingent,    905, 
906. 
Accession  :  (See  Accretion;  Fixtures; 
Occupancy.) 

title  by,  108,  109,  1002. 

personalty,  353. 

compare  title  ratione  soli,  352. 

compare  title  by  occupancy,  no. 

Accounting" : 

by  tenant  in  common,  97C . 

repairs  and  improvements  as  offset, 

976. 
Accretion  :  (See  Accession.) 
title  by,  108,  109,  1002. 
by  imperceptible  degrees,  108,  1004, 

1006. 
alluvion,  108,  1003,  1006. 
newly-formed  islands,  108. 
dereliction,  1004,  1006. 
formed  by  natural  or  artificial  means, 

1006. 
aerolites,   109. 

Accumulations  of  Income : 

rule  as  to,  925. 
Actions : 

kinds  of,  abolished,  67. 

what  distinctions  must  remain,  52. 

local  and  transitory,  66. 

real  and  personal,  58. 

for   temporary  or  permanent    injury 

to  land,  28. 
ejectment,  53-59-  io3- 
replevin,  86,  109. 

[11 


are  to  the  Pages, 

Administrator's  Sales :   (See  Exec- 
utors and  Administrators.) 
nature  of  surplus  when  owner  under 

disability,   70. 
effect  on  dower,  653. 

Adverse  Possession: 

title  by,  1007-1035. 

elements   of,    1009,    1030,    1013,    1016, 

1019. 
facts  for  jury,  1017,  1018. 
by  mortgagee  in  possession,  1047. 
constructive  possession,  1030. 
mere  possession,  1007. 
tacking  adverse  holdings,  816,  1031. 
possession    of     tenant    of    disseisor, 

1009. 
interruption  of,  1008. 
claim  of  title,  1021. 
color  of  title,  1023. 
Alienation : 

restraints  on, 

fees,  383,  560,  561,  562. 
life  estates,  581,  5S4,  587. 
estates  for  years,  749. 
spendthrift    trusts,    583,    584,     587, 

595,  602,  6o4«. 
partial.  562,  567,  568,  570. 
married  woman's    separate    estate, 

93.   571- 
forfeiture  for,  605,  561. 

Aliens  : 

capacitv  to  take   lands,  71,   645,  980, 

981. 
capacitv   to   hold   legal    or    equitable 

title,  71,  645. 
curtesy,  645. 
dower,  692. 

estate  by  marital  right,  981. 
capacity  to  transfer  or  transmit  title, 

980. 

Allodial  Lands : 

in   New  York,  86;/.,  81. 

Alluvion  :  (See  Accretion.) 
Alternate  Limitations : 

alternate  remainders,  878,  882. 
alternate  executory  devises,  907. 
distinguish    conditional    limitations, 
934- 

43] 


U44 


INDEX. 


The  References  t 

Alternate  Limitations — continued. 

prevented   by  rule   in    Shelly's  Case, 
857. 

Animals,  etc.  : 

bees,  365,  368. 
fish,  360. 

game,  361,  365,  368,  370. 
Annexation  :  {See  Fixtures.) 
of  personalty  to  realty,  21S. 
replevin  for  annexations,  52. 
actual,  234,  237,  239,  242,  245,  248. 
constructive,  220,  224,  227,  231. 

Annuities : 

nature  of,  19. 

Apportionment:  {See  Rents.) 
Appurtenants : 

land  not  app.  to  land,  10S2. 
incorporeals  as,  1083. 

Assignment : 

of  easement  in  gross,  810. 

of  lease  by  lessor,  746. 

of  lease  by  lessee,  731,  743,  744,   748, 

749-  751- 
of  license,  effect,  793. 

Attornment : 

definition,  204. 

to  create  privity  of  contract,  751. 
now  unnecessary,  75°- 
history  of  law  of,  751. 
Avulsion  :  {See  Accretion.) 

Bankruptcy  : 

title  by,  1070. 
Bargain    and    Sale:     {See   CoNvrv- 

ANCES.  ) 

deed  of,  909 

Buildings  and  Other   Structures  : 
{See  Fixtures.) 

houses  and  barns,  101,  257.  280,  283, 
288,  289,  307,  309,  312,  319,  285. 

cider  mill,  320. 

fences,  51,  254,  255,  286,  836/*. 

buildings  burned,  437,  726,  733,  735"-. 
765- 
Chattel  Mortgages  :  {See  Fixtures.) 

on  fixtures,  real  or  chattel,  242,  248. 

on    personalty   about    to    be    affixed, 

203.    2<j7- 

Chattels  Real : 

(Mates  for  years  are,  8. 

chattel  interests,  g  23,  N.  Y.  R.  P.  L. 

Civil  Death  : 

meaning  and  effect,  668«. 

bankrupt)  y  as,  1072. 
Color  of  Title  :  {See  Adverse  Po 

1  1 N . ) 

in  general,  1021,  1023. 
two  tracts  1I1-'  riii.  'i,  one  oci  ii|  ied 
i'  129, 


re  to  the  Pages. 

Common  :  {See  Profits  a  Prendre.) 
Community  Property : 

nature  of,  968;/.,  969. 
compare  C.  L.  rules,  972. 
Compensation :     {See    Eminent    Do- 
main.) 

Conditional  Limitations :   {Compare 
Alternate  Limitations.) 
examples,  etc.,  669,  671. 

Conditional  Sale : 

chattel  bought  on,  annexed,  290. 

Conditions : 

precedent,  529,  907,  917". 

subsequent,  527,  529,  533. 

impossible,  542,  550. 

void,  542. 

in    restraint   of    alienation,    561    {See 

Alienation). 
in  restraint  of  marriage,  546. 
the    right   of    re-entry    for    condition 

broken,  527,  533. 
mortgage,  538. 
Conflict  of  Laws  : 

as  to  personalty  (leaseholds),  44. 
as  to  realty,  47. 

Contingent  Remainders : 

in  general,  868-904,  868«.,  930. 

examples,  868,  877,  882. 

under  N.  Y.  statutory  def.,  890-904. 

creation  of,  917  and  «.,  918,  919. 
Continual  Claim  :    {See  Disseisin.) 
Contract : 

for  a  lease,  721. 

oral    for    sale    of    land    or    interest 

therein,  38. 
enforcement  of  parol,  in  equity,  803, 

804,  806. 

Conveyances :  {See  Deeds.) 

at  common  law,  1073. 

under  statute  of  uses,  1074,  502,  1073. 

modern  statutes,  916. 

not  by  parol,  1060,  1075. 

abandonment   is    not   a   conveyance, 

1060. 
words  of  con.,  ioSo. 
livery   of   seisin   (and    feoffment),  53, 

57,  1032. 
fines  and  recoveries,  987,  1050,  1051. 
patents,  1076. 
release,  512,  1078. 
exchange,   31. 
bargain  and  sale,  909. 
covenant  to  stand  seised,  488. 
grants,  1037,  1069,  1075. 
from  state,  1069. 
primary  and  secondary,  1073. 
mortgage,  1105. 

Coparcenary  : 

estates  in,  947,  949. 


INDEX. 


I  145 


The  Referem  es 

Coparcenary  —  continued. 

coparceners  constitute  one  heir,  951. 

Corporations  : 

capacity  to  take  realty,  49,  527,  998. 
capacity  to  conveyor  mortgage,  1000. 
dissolution   owning  real  estate,    527, 

860,  865  and  n. 
nature  of  stock,  14. 
words    of    limitation    in    transfer   to, 

509.  527. 

Covenants  : 

in  general,  1094-1105. 
implied,  152,  75S,  762. 
for  title, 

seisin,  286,  1103,  1094. 
warranty,  483,  511,  1100. 
quiet  enjoyment,  1100. 
further  assurance,  1102,  1103. 
non-claim,  1663. 
for  renewals,  704. 
to  rebuild,  765. 
restrictive,  387,  388. 
not    to  enlarge    words  of  limitation, 

484. 
estoppel  by,  1061. 
rent,  81,  86.  89. 

running    with    land,    746,    766,    1063, 
1094. 
Coverture  :  (See  Husband  and  Wife.) 
Croppers : 

usually    to    be     distinguished    from 

lessees,  720. 
but  may  be  lessee,  408. 
Crops  :  (See  Vegetable    Products  of 

soil.) 

Curtesy : 

in  general,  23,  622-648. 

nature,  622. 

essentials  for,  627. 

in  what  estates,  639. 

in  land  converted  into  money,  24. 

how  defeated,  645. 

Dedication  : 

acceptance  necessary  for,  812. 

Deeds : 

in  general,  1075-1105. 
words  of  conveyance,  1080. 
what  passes  by,  114. 
description  of  land,  1081. 
habendum,  509. 
covenants,  1094. 
delivery,  1085,  1088. 
escrows,  1089. 

Dereliction  :  (See  Accretion.) 
Descent : 

in  general,  20,  1127-1141. 
annuities,  19. 
crops,  209. 
estates  pur  autre  vie,  13. 


are  to  the  Pages. 

Descent  —  eon  tinned. 

grass,  173. 

land,  20. 

leases,  12. 

manure,  339. 

money  as  land,  25,  70,  72. 

possibilities  of  re-entry  for  condi- 
tion broken,  533. 

reversions,  460. 
common-law  rules,  460,  889,  1127. 
to  half  blood,  889. 
seisin  a  faeit  stipitem,  57. 

shifting  inheritances,  1127. 
worthier  title,  948,  949,  1135. 
Destruction  of  Future  Estates  : 
forfeiture  of  precedent  estate,  930. 
merger,  931. 
"  recoveries,"  932. 

attempted    transfer  of    possibility    of 
re-entry,  935. 

Determinable  Estates : 

in  fee,  521,  669,  671. 
for  life,  575. 
for  years,  731. 

Devise  : 

in  general,  1122-1126. 

nature,  1122. 

of  reversion,  930. 

of  crop,  207. 

of  rent,  86. 

of  wife's  leasehold,  26. 

real  or  personal,  24. 

by  married  woman,  990,  992. 

to  corporation,  49. 

Disclaimer  : 

not  a  conveyance,  626. 

of  legal  life  estate,  626. 

by  grantee  after  acceptance,  626. 

by  heir,  626. 

by  devisee,  627. 

Disseisin  (Ouster): 

rights  of  disseisee,  57. 
disseisee's  deed,  103 1,  1034. 
what  amounts  to,  816. 
of  tenant  in  common,  1053. 

Distress : 

incident  usually  to  reversion,  84,  755. 
in  case  of  rent-charge,  84,  S6. 
rent-service,  86. 

Divorce : 

effect  on  dower,  695,  696/2. 
effect  on  estate  by  entireties,  960. 
Dower : 

in  general,  23,  648-710. 

in  long  term  of  years,  8,  713;*. 

in  wild  lands,  709. 

in  corporate  stock,  14,  15,  19. 

in  partnership  realty,  18,  20. 

inchoate,   700-703. 

not  derived  from  husband.  -«  5. 


1 146 


INDEX. 


The  References 
DOWer —  continued. 

testamentary  gift  in  lieu  of,  705-8. 
release,  704,  705. 
Easements:    {See    Ways,     etc.,     and 

Table  of  Contents,  p.  xv.) 
in  general,  809-846,  472. 
are  property,   1,  6, 
appurtenant,  appendant,  or  in  gross, 

473,  810. 
continuous    and  discontinuous,    1,  6, 

S09. 
creation,  126,  811,  S12,  813,  814. 
attempted    parol   grant,    76,    77,    801, 

802. 
implied  by  necessity,  812,  821. 
assignment  of,  472. 
running  with  land,  480. 
destruction,  S14,  816. 
license  to  obstruct,  795. 
prescription,  120. 

Ejectment : 

to  recover  term,  53. 
for  coal  mine,  103. 
possessory  action,  55. 
history,  etc.,  56. 

Election : 

in  case  of  provision  in  lieu  ot  dower 
707. 

in  equitable  conversion,  72. 

effect  of  death  before,  72-75. 
Emblements  :   {See  Vegetable  Prod- 
ucts.) 

go  to  adm'r  of  decedent,  20. 

what  constitute,  403. 

on   expiration   of  "  term,"    406,    Pa. 
rule,  406. 

tenancy  at  will,  407. 

tenant  for  life's  tenant,  409. 

entry  under  void  parol  contract,  769. 

Eminent  Domain  : 

in  general,  1-7.  1056,  1069. 

the  mill  acts,  120  and  n. 

effect  of,  on  dower,  650;/.,  698. 
Entireties  : 

estates  by,  952.  941. 

effect  of  special  words  of  limitation, 
940,  959«. 

effect  of  divorce,  960. 

a  nd  control  during  coverture,  963. 
Entry  : 

when  may  be  made,  57. 

Equity  : 

stal  1 1 1 < •  of  limitations  in,  1047. 

estates  in,  505,  675,  Be  \,  857. 

equitable  waste,  4  (.2,  391. 

equitable  conversion,  20,  24,  71,  706. 

in  general,  70,  854. 
Escheat : 

feudal,  - 

of  corp  irate  real  proper)  v,  860, 


>-e  to  the  Pages. 

"Estate:" 

meanings  of  term,  511. 

Estates  in  Common : 

in  general,  944. 

in  line  trees,  r6S. 

waste  by  tenant  in  common,  396,  398. 

words      of      limitation     in     partition 

deeds,  511. 
arising   from    tenancy   by    entireties, 

962. 

Estates  Upon  Condition : 

fees,  383,  527,  529,  935. 

life-estates,  575. 

estates  for  years,  731,  733. 

Estates  by  the  Curtesy :   {See  Cur- 
tesy.) 

Estates  Less  Than  Freehold : 

in  general,  713-787. 

real  or  personal  property,  713. 

cases  to  be  distinguished,  713-721. 

terms,  estates  for  years,  724-764. 

estates  at  will,  767-772. 

estate  from  year  to  year,  773-786. 

tenancy  at  sufferance,  787. 

Estates  in  Joint  Tenancy  : 

nature  and  creation,  938-943. 

Estate  by  the  Marital  Right : 

in  general,  23,  621. 

in  land  converted  into  money,  24. 

in  leaseholds,  26. 

execution  sale  of,  27. 

Estate  pur  Autre  Vie  : 

after  death  of  first  taker,  13. 

by  marital  right,  2S. 

direct  and  indirect  creation,  578. 

general  and  special  occupants,  579. 

modern  statutes,  5S0  and  n. 

Estates  by  Sufferance  : 

tenant  holding  over  term,  735,  738. 
in  general,  7S7. 

Estates  tail  :  {See  Fee  tail.) 

Estates  in  tail  After  Possibility  of 
Issue  Extinct : 

a  kind  of  life  interest,  621. 
Estates  at  Will : 

in  general,  767-772. 

creation,  741,  767-769. 

termination,  771-772. 

mortgagor  as  tenant  at  will,  203,  204. 

trespass    for  waste  by  tenant   at  will, 
463. 
Estates  for  Years  : 

in  general,  724-766. 

essential  features,  724-738. 

creation,  741. 

alienation,  743-752. 

rights    and    duties    of    landlord     and 
tenant,   753-766. 
independent  of  covenants,  753-758. 


INDEX. 


1 147 


The  References 

Estates  for  Years— continued. 

implied  covenants,  758-763. 
express  covenants,  764. 


Estoppel 

in   general,  1061,  1064. 

in  deed,  484,  880,  106 1. 

in  pais,  1064,  1 123. 

title  by,  1061. 

in  case  of  license,  76,  798,  801,  803 

to  deny  landlord's  title,  757- 

dower,  704. 

Estovers  : 

in  general,  417. 
see  also,  445,  447,  449- 
Exchange  :    {See  Conveyances.) 

Execution: 

on  fructus  naturales,  187. 

on  crops,  402. 

lien,   10,  19. 

sale,  30,  1072. 

against  fixtures,  270,  271. 

Executors     and     Administrators : 

{See  Administrator's  Sales.) 
estates /w  autre  vie  pass  to,  13. 
leaseholds,  12,  20. 
Executory  Limitations  : 
in  general,  906  and  n. 
shifting  (or  conditional)   limitations, 

669,  671,  907. 
springing  limitations.  907,  909. 
executory  devises,  391,  395"-.  <J\l- 
special  rules,  919,  921. 

Fealty : 

as   an   incident  to  feudal  estates,  84, 
86,  87,  90. 

Fees  : 

in  general,  483-575- 
creation,  483-5T9- 
kinds,  520-560. 

fee-farm,  520. 

fee-simple,  521. 

qualified  for,  521. 

on  condition,  527. 

on  limitation,  521. 

fee-conditional     of    common    law, 

551- 
fee-tail,  5?5- 
incidents,  560-575. 
alienability,  560-571- 
Fees  upon  Condition  :    (See  Estates 
upon  Condition:  Conditions.) 

Fee-farm : 

a  socage  tenure  fee,  520. 
fee  farm  rents,  81,  86. 

Fees  Upon  Limitation : 

special  or  collateral,  521,  525. 

Fee  Simple : 

words  of  limitation   in  deed,  513,  in 
will,  514. 


are  to  the  Pages. 

Fee-stail : 

in  general,  485,  55?.  i"77- 

by  implication  in  will,  931,  ir35- 

Feudal  System  : 

principles  discussed.   S2-89,   92,   320, 
489,  520,  860,  1031. 

Fines  and  Recoveries:   (See  Convey- 
ances.) 
Fixtures  :  (See   Table    of   Contents, 
PT.  ii.  ch.  ii.  v.) 
definition,  218  and  n. 
annexation,  218-254. 
severance,  254-270. 
intention  of  annexor,  271-283. 
appropriation,  283. 
relation  of  annexor  to  chattel  and  to 

land,  283-323. 
questions  arise  between, 
executor  and  heir,  305. 
execution   creditor   and   vendee   of 

annexor,  307. 
vendor  and  vendee,  mortgagor  and 

mortgagee,  307. 
tenant  for  life  and  remainderman, 

310. 
tenants'  fixtures,  312-323. 
trade  fixtures,  312. 
agricultural  fixtures,  322. 
domestic  fixtures,  322. 
time  of  removal,  323-337. 


Forcible  Entries  and  Detainers  : 

statutes  forbidding,  1009,  ioi2«. 
effect,  1009. 
Foreclosure :  (See  Mortgage.) 
strict  foreclosure,  1118. 
by  action, 1122,  1044. 
by  advertisement,  210    1122. 

Forfeiture  : 

for  committing  waste,  466. 
for  alienation,  561,  605,  612,  646, 
feudal  forfeitures,  865,  931. 
by  life  tenant,  897. 
Franchises : 

in  general,  84S,  849. 
corporate,  15,  19. 

Freeholds  : 

definition  of,  8Sg«. 
must  not  be  in  abeyance,  909. 
of  inheritance,  483. 
not  of  inheritance,  575. 
FruetUS     Industrials  :     (See    Vege- 
table Products.) 
FruetUS  Naturales  :   (See  Vegetable 

Products.) 
Future    Estates  :     (See    Reversions; 
Remainders;    Executory    Limi- 
tations;   Conditional    Limita- 
tions.) 
in  general,  850-937. 


1 148 


INDEX. 


The  References  a 

Grant  :  (See  Conveyances.) 
presumption  of,  1037. 
from  state,  1069. 

Habendum  :  (See  Deeds.) 

Hereditaments  : 

definition    760. 

rent  as  a  hereditament,  85. 

annuities  as,  19. 

Highways  : 

public  easements,  S44. 

waters  as,  364,  140. 

rights  of  public,  S44. 

rights  of  owner  of  fee,  S45,  846. 

manure  on,  349. 

obstruction  of,  SiS. 

by  prescription,  1036. 

Homestead : 

as  a  joint  estate,  968  and  n. 
as  a  life  interest,  711,  712. 

Husband  and  Wife  :  (See  Estates  by 
Marital  Right  ;  Dower;  Cur- 
tesy; Married  Women.) 

husband's  interest  in  wife's  personal 
property,  24,  26,  70. 

estates  by  entirety,  952. 

Ice  : 

as  an  incident  to  land,  136-151. 

Identity  : 

tracing  identity  of  chattels  annexed, 

240,  307. 
loss  of  by   annexation,  51,   240,   299, 
307- 
Improvements  :  (See  Repairs.) 

Income : 

is  personalty,  71. 
accumulations  of,  925. 

Ineorporeals  : 

1  orporeal  and  incorporeal  interests, 
76. 

in  genera],  809-854. 

Incumbrances  : 

covenants  against,  607,  609. 

Infants : 

1   ipacity  of  for  transactions  in  realty, 

T  I     986,    085». 

statute     of      limitations,     exception, 

[045,  1046. 
mortgage  by,  484. 

ippel  against,  1064. 

elc<  tion  by,  70. 

Injunctions  : 

1  in  pies,  'jo,  42,  62,  64,  99,  124. 

Interesse  Termini  : 

nal  lire  of,  722. 

Islands  :  (Se»  A<  cretio 


re  to  the  Pages. 

Joint  Estates  : 

kinds, 

in  joint  tenancy,  938. 

in  common,  944. 

in  coparcenary,  947. 

by  entireties,  952. 

in  homestead,  968. 

communitv  property,  968. 

in  partnership,  972. 
incidents,  972-97S. 
partition,  978. 

Joint  Tenancy  : 

in  general,  685,  686,  938. 

Land: 

definition  of,  3,  39,  170. 
subdivisions  for  ownership,  97-107. 
constituents   and   incidents,    108-381. 
(see  Table  of  Contents). 

Landlord  and  Tenant : 

their   rights   against  each  other,  753— 
764. 

Lateral  Support : 

easement  of,  826,  829,  830,  831. 
Lease  :  (See  Estates  for  Years.) 

Leaseholds  :  (See  Estates  Less  than 
Freehold.) 
leases  in  fee,  713. 

Legitimation  : 

statutes  authorizing,  637,  638,  63g«. 

Licenses : 

nature,  788. 
how  given,  789. 
assignability  of,  793. 
revocation,  795-S08. 
uses  of  another's  land,  480. 

Liens  : 

on  land,  10,  12. 
mechanics,  234. 

Life-Estates  : 

absolute  and  defeasible,  575. 

for  one's  own   life  and  fur  autre  -vV, 

57S.. 
conventional  and  legal,  581,  619,  621. 
incidents  of,  581-61 1. 
termination,  611-618. 
creation  of,  619. 
words  of  limitation,  620. 
successive,  620. 
legal,  621-711 
estate  in  tail  after  possibility  of  issue 

extinct,  621. 
estate  by  marital  right,  621. 
estate  by  curtesy,  622-648. 
dovvcr,  648-710. 
homestead,  711. 
Light  and  Air : 
easements  of,  in  general,  837. 
over  public  streets,  S44  and  ;/. 


INDEX. 


I  149 


The  References  < 

Limitations-.     {See  Statute  of  Limi- 
tations.) 
Livery  Of  Seisin  :  {See  Conveyances.) 

Lodgings : 

hire  of,  distinguished  from  lease,  717. 

Lunatics:    {See  Persons  of  Unsound 

Mind.) 
Machinery  :  {See  Fixtures.) 

as  fixtures,  242,  271,  290,  293,  297. 

Manure : 

as  an  incident  to  land,  255,  338-350. 

Marital  Right:   {See  Estates  by  the 
Marital  Right.) 

Marriage : 

conditions     and     limitations    in     re- 
straint of,  542-54.6. 
marriage  settlements,  93. 
annulment  of,  646. 

Married  Women : 

powers  of  in  general  as  to  real  prop- 
erty, 9S6-993. 
her  deed,  647,  987. 
separate  estate,  93,  571,  993. 

Merger : 

terminating  life-estates,  451,  615. 
can    life-estate    merge    a  contingent 
remainder,  918. 

Minerals : 

coal,  37,  102. 
gold,  372,  374. 
natural  gas,  372. 
stone,  37,  m,  114. 

Mines : 

life  tenant  opening  and  working,  453. 

Mislaid  Goods : 

to    whom    they    belong    if    loser    not 
found,  359. 
Mortgages:  ( See  Foreclosure.) 
in  general,  1105-1122. 
as  to  crops,  197,  199,  201,  209,  211. 
as  estate  on  condition,  538. 
as  to  fixtures,  261,  271,  272. 
as  to  fructus  naturales,  400. 
injunctions,  176,  400. 
nursery  trees,  164. 
receiver  of  rents,  23. 
redemption,  bill  for,  1047. 

Movables : 

meaning  of  term,  no,  in. 
Navigable  Waters  :  {See  Waters.) 

Nuisance : 

abatement  of,  99,  382. 

Occupancy : 

title  by.  100,  713,  717,  1002. 
Ouster:  {See  Disseisin.) 


re  to  the  Pages. 

Parol  Evidence  : 

to  explain  or  vary  written  agreement 
or  transfer,  31,  32,  114,  163,  258 

Partition : 

of  joint  estates,  97S,  979;/.,  218. 
by  deed,  511. 
Partnership : 

estates  in,  6S6,  972. 

Party-walls : 

easements,  S34. 
Patents.  {See  Conveyances.) 
Perpetuities  : 

rule  against,  911,  921. 

examples  of  application,  525,  913, 
1138. 

does  not  apply  to  possibilities  of  re- 
verter, 526. 

other  states  (conflict  of  laws),  45. 

Persons  of  Unsound  Mind  : 

capacity  in  dealing  with  realty,  9~)J, 
997  and  n. 
Possession:  {See  Adverse  Possession.) 
Possibilities  of  Reverter : 

to  be  distinguished  from  contingent 
right  of  re-entry  for  condition 
broken,  526,  866. 

Powers : 

remainders  in  default  of  appointment 

under,  S89. 
conferring  full  dominion,  923. 

Prescription : 

title  by,  in  general,  1036,  1037. 
see  also  120,  840,  1057. 

Profits  a  Prendre : 

incorporeal  hereditaments,  77  78, 
102,  105,  475,  847,  811. 

Property : 

absolute  and  special,  80. 

allodial  and  feudal,  81. 

corporeal  and  incorporeal,  76. 

definition,  1,  3-6,  514. 

in  general,  1-93. 

legal  and  equitable,  93. 

real,  3-6,  514. 

real  and  personal,  8-75. 

what  is    3-6,  514. 

Purchase : 

title  by,  1002 

Quia  Emptores : 

statute  of,  82,  83,  87,  88. 

Real  and  Personal  Property  : 

in  land,  8-20,  289,  546 
differences  between,  20-69. 
changes  from  one  to  the  other,  70. 

Records : 

necessity  for  examining,  1067. 
Redemption  : 

from  mortgage,  bill  for,  1047. 


ii5o 


INDEX. 


The  References 

Release  :  (See  Conveyances.) 
Remainders : 

in  general,  866-916. 

acceleration  of,  904. 

alternate,  904. 

to  a  class,  885. 

in    default  of    appointment  under    a 

power,  8S9. 
after  estate  tail,  S89. 
preferred  in  construction  to  executory 

limitation,  gogn.,  919. 
successive,  905  and  //. 
under  statutory  definition,  890. 
vested  and  contingent,  866,  868. 
Rents:   (See   Landlord  and   Tenant. 

Estates  for  Years.) 
apportionment  of,  412. 
as  incorporeal  hereditaments,  84S. 
remedies  for,  754. 

Repairs : 

by  tenant  in  common,  973. 

by  tenant  for  life,  419. 

writ  de  domo  reparanda,  100. 
Replevin  :  (See  Actions.) 

action  of,  S6,  109. 
Reservations : 

how  to  be  made,  31. 
Restraints  :  (See  Alienation.) 
Reversions : 

in  general,  S56-866. 
equitable,  857. 

possibilities  analogous  to,  860. 
transfer  of,  925. 
descent  of,  460. 
Right  of  Entry : 

when  it  exists,  57,  1031. 

Rolling  Stock  of  Railways  : 

real  or  personal  estate,  24S. 

Rule    Against    Perpetuities:    (See 
Perpetuities.) 

Sea  Weed : 

ownership  of,  351. 
Seisin  :  (See  Livery  of  Seisin.) 

what  is  sufficient  for  dower,  658,  661- 
66? . 

what  for  curtesy,  628.  629. 
Severance  :  (See  Fixtures  ;  Table  of 

CONT]    ITS  FOR,  pp.  254-270.) 

Shelly's  Case : 

rule  in,  487,  519,  520;/.,  890,  892.  918. 

Shifting  Executory   Estates:    (See 
'  0   niiH in \i.  Limitations.) 
in  New  Yot k-,  867«. 
Shore  :  <     t  Watei     I 

Soil  : 

I  or  personal ,  to 
Springing  Executory  Limitations  : 

■  1  •   ■      el       367».,  007,  914. 


are  to  the  Pages. 

State  : 

acquisition  of  title  by,  ioo2«. 
patents  from,  505. 
construction  of  patents,  1069. 

Statute  of  Frauds  : 

assignment  of  lease,  747. 

contracts  for  sale  of  interests  in  land, 
38. 

crops,  31. 

fruit,  160. 

fixtures,  258. 

ice,  149. 

leases,  741. 

minerals,  78. 

trees,  34,  38,  152.  180,  184,  190,  191. 
Statute    of    Limitations :    (See    Ad- 
verse Possession.) 

title  by,  1040-1060. 

essentials  for  title  by,  1040. 

nature  of  the  title,  1053. 

see  also  59-61,  640,  841,  882. 

Statute  of  Quia  Emptores :  (See  Quia 

Emptores.) 
Statute  Of  Uses  :    (See  Conveyances.) 
estates  and   transfers   under,   93,  96, 

502. 

Stranded  Property  : 

ownership  of,  355,  356. 

Subinfeudation  :   (See  Feudal  Prin- 
ciples.) 

Subjacent  Support : 

in  general,  832. 

Subletting  :   (Compare  ASSIGNMENT.) 
nature  of,  743-745. 

Subrogation  : 

in  mortgage  cases,  1044 

Summary  Proceedings : 

removal  of  tenant  by,  740. 

Survivorship:  (See   Joint   Tenancy.) 

Suspension  of  the  Power  of  Alien- 
ation : 

meaning  of  phrase,  921  n.  4. 
rule  against,  921. 

estates    subject    to    condition    prece- 
dent, 921. 
spendthrift  trusts,  922. 
Tacking:     (See    Statute  of    Limita- 
tions.) 
disabilities,  1008,  1049. 
possessions,  1040-1042. 

Taxes : 

title  by  sale  for,  1073. 
Tenancy:    (See   Estates   for  Years, 

Etc.) 
Tenant:  (See  Landlord  and  Tenant.) 
Tenements : 

definition,  7'-". 


INDEX. 


II5I 


The  References 

Tenure:  {See Feudal  Principles.) 
socage,  83,  87. 

Terms  :  {See  Estates  for  Years.) 
Title : 

definition,   1002. 

by   purchase   and   by   descent,    1002, 

by    original    and    derivative    acquisi- 
tion, 1002,  1069. 
by  conveyance,  1073. 

primary  and  secondary,  1073. 

under  statute  of  uses,  1073. 

grants,  1075. 

modern  transfers,  1075. 
from  state,  1069 
kinds  of. 

accretion,  1002. 

administrators'  sales,  1073. 

adverse  possession,  1007. 

bankruptcy,  1070. 

estoppel,  1061. 

execution  sale,  1073. 

judicial  decree,  1073. 

marriage,  1070. 

prescription,  1036. 

statute  of  limitations,  1040. 

tax  sales,  1073. 

Transfers  : 

in  general,  918-938. 
of  contingent  remainders,  918. 
of  executory  devises,  925. 
of  joint  interests,  938. 
mode  of,  31 

Trespass : 

quare  clausum,  34,  66. 

dc  bonis,  66. 
action  on  case,  27. 

Trusts  : 

spendthrift,  583-604. 

passive,  502,  1074. 

for  married  women,  93,  95,  855,  S58. 

Unincorporated  Societies : 

can't  take  by  devise,  48. 

Use  and  Occupation  : 

actions  for,  13,  757. 
by  general  owner,  382. 
by  life  tenant,  etc.,  401. 
by   way   of    easement,    license,    etc. 
472-4S0. 
Uses : 

before  the  statute,  854. 
under  the  statute,  854. 
modern  are  trusts,  855. 
see  also,  93,  910-914. 


are  to  the  Pages. 

Vegetable  Products  of  Soil :  {See  Em- 
blements ;  Table  of  Contents, 
for  pages  151-217.) 

bushes  and  berries,  171,  172. 

crops,  187-21S. 

fructus  industrials  ,  1S7-218. 

fructus  naturales,  151-1S7. 

fruit,  154,  160,  173. 

hops,  36. 

line  trees,  168. 

trees,  151-187. 

Vested  and  Contingent  Interests  : 

in  general,  856,  866-904. 

Vesting : 

New    York    rule    as    to,    in    case    of 
remainders,  924. 
Warranty  :  {See  Covenants.) 
Waste : 

nature  and  kinds,  422-444. 

voluntary,  422. 

permissive,  422. 

equitable,  442. 
waste  of  houses,  445. 
waste  of  woodlands.  445. 
good  husbandry,  450. 
mines,  453. 
remedies,  466. 
against  whom,  460. 
waste    by    owner    of    life    interest  or 

leasehold,  422-444. 
waste  by  general  owner,  391-400. 
by  tenantof  estate  by  marital  right,  27. 

Waters . 

artificial  watercourses,  126. 
navigable  waters    10S,  137,    138.  146. 

147,  361,  1005. 
on  surface,  116. 
running  waters,  116. 
underground  waters,  130,  372. 
as  minerals,  372. 

Ways : 

in  general,  817. 
of  necessity,  817. 
repair  of,  822. 
excessive   use   of,  823. 

Wild  Lands : 

dower  in,  680,  683. 
constructive  possession  of,  1030. 

Wreck  : 

on  shore,  ownership,  355. 

Writs  : 

of  assize,  57. 

de  reparation,:  facienda,  IOI. 

of  entry,  57  ,ioS. 

of  right,  54,  55.  57.  5S. 


Whole  Number  of  Pages  1177. 


LAW  LIBRARY 
UNIVERSITY'  OF  CALIFORNIA 

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